In re A.R.

2014 Ohio 5406

• Court: Ohio Court of Appeals
• Decided: December 5, 2014
• Docket: 14 JE 19
• Status: Published

Opinion

[Cite as In re A.R., 2014-Ohio-5406.] STATE OF OHIO, JEFFERSON COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN THE MATTER OF: ) CASE NO. 14 JE 19 ) A.R. ) ) OPINION ) )

CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas, Juvenile Division, of Jefferson County, Ohio Case No. 2011 DN 00033

JUDGMENT: Affirmed.

APPEARANCES:

For Appellant Paige Frazier : Atty. Jerry L. Boswell 139 North Third Street Steubenville, Ohio 43952

For Appellee JCDJFS: Atty. Amanda J. Abrams 125 S. 5th Street Steubenville, Ohio 43952

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: December 5, 2014 [Cite as In re A.R., 2014-Ohio-5406.] WAITE, J.

{¶1} Appellant Paige Frazier, the natural mother of minor child A.R., appeals

the judgment of the Jefferson County Court of Common Pleas, Juvenile Division,

granting permanent custody of the child to the Jefferson County Department of Job

and Family Services (JCDJFS), and permanently terminating her parental rights.

Appellant argues that the child was originally taken from her home due to drug abuse

by herself and her boyfriend, and because of the boyfriend's mental health problems.

Appellant asserts that she and her boyfriend attended a drug treatment program and

that their drug abuse and mental health issues were controlled at the time of the final

hearing. Appellant contends that the court's decision is against the weight of the

evidence.

{¶2} The record reflects that there were many factors involved in the original

adjudication that the child was a neglected and dependent child, including Appellant's

extensive and daily drug use around the child, her failure to pass drug tests, her

failure to attend drug and alcohol treatment programs, the lack of adequate housing

because Appellant was homeless, physical abuse of the child, and the fact that

Appellant's boyfriend attempted to commit suicide while the child was present. The

case plan for reuniting Appellant with the child included much more than just proof

that Appellant was free from drugs. The record shows a general failure to abide by

the therapy and counseling portions of her case plan. Appellant's evidence of

treatment was incomplete and contradictory, her medical documents were not

properly certified, and the alternate treatment she chose was not part of her case

plan. The record supports the trial court's judgment that Appellant failed multiple -2-

aspects of the case plan. Appellant's assignments of error are overruled and the

judgment of the trial court is affirmed.

Case History

{¶3} A.R. (age 3) was removed from Appellant's place of residence by the

police on August 9, 2011, and was placed in the custody of JCDJFS. Part of the

reason for the child’s removal was Appellant’s drug abuse and that of her live-in

boyfriend, Edward Swearinger. The most immediate reason for the removal was that

Swearinger had attempted suicide by cutting his wrists three times in the house while

the child was present. At the time, Appellant, Swearinger and A.R. lived with two

other drug users. Appellant had another open custody case with JCDJFS at the time

and had completely failed her drug treatment requirements in that case.

{¶4} JCDJFS filed a complaint on August 10, 2011, alleging A.R. was a

neglected and dependent child, and requested temporary custody and protective

supervision of the child. A guardian ad litem was appointed for the child. At a

hearing on August 31, 2011, Appellant, the child’s natural father and the guardian ad

litem entered into an agreement with JCDJFS that the child was a neglected and

dependent child. The agreed entry was filed on September 13, 2011. The judgment

entry noted that reasonable efforts had been made by the agency to prevent

placement of the child, including case management and related services, drug and

alcohol treatment, domestic violence and mental health treatment for Appellant and

Swearinger, assistance with housing, and parent aide services. The case plan

required Appellant and Swearinger to successfully complete drug treatment and -3-

abide by all recommendations of their counselor. It also required them to work with a

parent aide and ordered Appellant to find stable and secure housing.

{¶5} On January 5, 2012, Henry C. Frazier, the maternal grandfather of the

child, filed a petition for reallocation of parental rights, requesting custody of the child.

On May 4, 2012, the petition was denied, after a hearing, due to a failed home study.

On July 19, 2012, the maternal great-grandmother, Betty Dorff, filed a petition for

reallocation of parental rights, requesting custody of the child. That petition was also

denied, after a hearing, on January 2, 2013, due to Dorff’s prior history of the

mistreatment of children.

{¶6} On August 14, 2012, JCDJFS filed a motion for extension of temporary

custody. The motion was granted on September 12, 2012. A second motion for

temporary custody was filed on February 15, 2013, and was granted on March 6,

2013.

{¶7} On May 14, 2013, JCDJFS filed a motion for permanent custody.

Natural father recommended that permanent custody be transferred to JCDJFS, and

he has had nothing more to do with this case following this recommendation. A

hearing on the motion was held before a magistrate on August 21, 2013. The

guardian ad litem report was filed, recommending permanent custody to the agency.

Six witnesses testified, including Edward Swearinger. Appellant refused to testify.

After the hearing concluded, counsel for Appellant requested leave to obtain and file

records from South Hills Recovery Project regarding alleged Suboxone drug

treatment records. The magistrate granted the request, and the hearing was -4-

continued to October 11, 2013. At the continued hearing, it was determined that

South Hills Recovery Project had not sent any records to JCDJFS, and that records

independently obtained by Appellant, Swearinger and their counsel were not certified

copies. The records that were obtained conflicted with each other and were

incomplete. Appellant's counsel admitted at the hearing that none of the records

were certified. (10/11/13 Tr., pp. 4-6.)

{¶8} Appellant's therapist, Denise Smith, testified that Appellant and

Swearinger had not completed drug and alcohol treatment with her. Smith was the

coordinator of drug and alcohol services at Jefferson Behavioral Health Systems

(JBHS), as well as Appellant's therapist and a licensed social worker. She testified

that she never received any documentation of treatment from South Hills Recovery

Project and had no contact with that facility. She also testified that Suboxone

treatment was not part of Appellant’s case plan and would not constitute satisfactory

completion of the required drug and alcohol treatment. As far as Smith was aware,

Appellant's only reason for going to South Hills Recovery Project was to get a

prescription for Suboxone, and not to receive any other type of treatment. The goal

of Appellant's treatment program with Smith, though, was more than the immediate

termination of Appellant's current drug abuse. (10/11/13 Tr., p. 22.) It was also to

prevent future drug abuse and to help Appellant maintain a stable home environment

to prepare her and A.R. for family reunification. (10/11/13 Tr., p. 22.) Smith did note

that Appellant had 24 clean drug screens with JBHS, the most recent being on July 8,

2013. -5-

{¶9} Jennifer Yasho, Appellant's caseworker at JCDJFS, testified that she

had received unverified, incomplete and contradictory records about alleged

treatment from South Hills Recovery Project. Documents showed two different start

dates of treatment for Appellant. (10/11/13 Tr., p. 29.) There were no treatment

progress notes on some of the documents, only dates of treatment, so it was

impossible to determine what treatment was actually provided. She received the

uncertified records from Appellant's attorney and not directly from South Hills

Recovery Project, so she did not know how they were obtained or if they were

authentic. Certain letters purporting to be from a Dr. Clark at South Hills Recovery

Project were undated and did not mention that Appellant was pregnant, which would

have been a factor in any drug abuse treatment. Other letters purporting to be from

the same doctor stated that neither Appellant nor Swearinger had completed

treatment. (10/11/13 Tr., pp. 35-37.) The letters recommended that treatment

include such actions as developing a strong support network, going to 12-step

meetings, and participating in drug and alcohol therapy, but there was no indication

that any of these recommendations had been followed. Yasho was concerned that

none of the documents had been obtained directly from South Hills Recovery Project,

even though she had requested them from that facility. They had come either from

Appellant, Swearinger, or their attorney. Some of the documents purporting to be

from Dr. Clark were not signed by him. Yasho also received supposed copies of

prescriptions, some of which were also unsigned. One of them was for Swearinger

for Ritalin, but that drug did not appear in any of his drug screens. -6-

{¶10} Yasho testified that the case plan recommended that Appellant and

Swearinger receive treatment at JBHS, not South Hills Recovery Project, and that

they were not compliant with the case plan because they did not seek or receive any

treatment at JBHS. Appellant and Swearinger had stopped going to JBHS altogether

since the prior hearing. Swearinger was required to get mental health treatment as

part of the case plan and was not receiving that either. Yasho was also concerned

that Appellant's home situation was not stable because neither Appellant nor

Swearinger had any source of income and were relying on family and friends to pay

their bills.

{¶11} The magistrate filed his decision on January 7, 2014. He concluded

that Appellant failed to comply with the case plan, had failed to comply with drug and

alcohol counseling on a consistent basis, that the records from South Hills Recovery

Project were not certified and primarily consisted of drug tests and prescriptions, that

Appellant had obtained housing but had no source of income, and that Appellant was

now complying with the parent aide and with visitation but had not complied for the

prior time period. Most of the documents from South Hills Recovery Project were not

admitted into evidence. The magistrate noted that the father recommended

placement with JCDJFS and sought no further involvement in the case. The child

had been successfully integrated into the home of the foster parents, who were

interested in adoption. The magistrate concluded that Appellant had failed

continuously and repeatedly to remedy the conditions that caused the child to be

removed from her home. The magistrate recommended permanent placement with -7-

JCDJFS in the best interests of the child, and the complete termination of Appellant's

parental rights.

{¶12} The court adopted the magistrate's decision on January 29, 2014, but it

was discovered that the magistrate's decision was not properly delivered to

Appellant. The court then set aside the order and allowed Appellant 14 additional

days to respond. On February 3, 2014, Appellant filed objections to the magistrate's

decision. The one-page document states that the child was removed due to drug

and alcohol abuse by her, the father, and her boyfriend but that these problems had

been resolved and that the child was also removed due to mental health problems of

Swearinger, and that this issue had also been resolved. She did not state with any

specificity the sections of the magistrate's decision to which she objected. A

transcript was ordered, but Appellant filed no other documents related to or

supporting her objections. On April 25, 2014, the court overruled the objections and

adopted the magistrate's decision, granting permanent custody of A.R. to JCDJFS.

This appeal followed on May 8, 2014.

ASSIGNMENTS OF ERROR NOS. ONE AND TWO

THE RECORD DOES NOT SUPPORT A FINDING THAT O.R.C.

2151.414(E)(1) OR ANY OTHER OF THE FACTORS UNDER O.R.C.

2151.414(E) WERE SATISFIED BY CLEAR AND CONVINCING

EVIDENCE AS IS REQUIRED BY 0. R. C. 2151.414(D)(2)(a).

THE DECISION TO TERMINATE THE MOTHER'S PARENTAL

RIGHTS DEPRIVED HER OF A FUNDAMENTAL AND -8-

CONSTITUTIONALLY PROTECTED RIGHT WITHOUT DUE

PROCESS, AND WAS NOT SUPPORTED BY THE RECORD.

{¶13} A court's decision terminating parental rights and responsibilities is

reviewed for an abuse of discretion. In re Sims, 7th Dist. No. 02-JE-2, 2002-Ohio-

3458, ¶36. A reviewing court will not overturn a permanent custody order unless the

trial court has acted in a manner that is arbitrary, unreasonable or capricious.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶14} JCDJFS filed a motion for permanent custody under R.C. 2151.413.

When a motion for permanent custody is filed by a children's services agency, the

trial court’s decision whether to grant permanent custody is governed by R.C.

2151.414. R.C. 2151.414(D)(2) allows the trial court to grant permanent custody to a

children's services agency on the following conditions:

(D)(2) If all of the following apply, permanent custody is in the best

interest of the child, and the court shall commit the child to the

permanent custody of a public children services agency or private child

placing agency:

(a) The court determines by clear and convincing evidence that one or

more of the factors in division (E) of this section exist and the child

cannot be placed with one of the child's parents within a reasonable

time or should not be placed with either parent. -9-

(b) The child has been in an agency's custody for two years or longer,

and no longer qualifies for temporary custody pursuant to division (D) of

section 2151.415 of the Revised Code.

(c) The child does not meet the requirements for a planned permanent

living arrangement pursuant to division (A)(5) of section 2151.353 of the

Revised Code.

(d) Prior to the dispositional hearing, no relative or other interested

person has filed, or has been identified in, a motion for legal custody of

the child. (Emphasis added.)

{¶15} The parties agree that the court needed to make one of the findings

listed under R.C. 2151.414(E) prior to terminating Appellant's parental rights.

Appellant claims that the trial court relied on R.C. 2151.414(E)(1) to terminate her

parental rights, and that the record does not support the court's finding under that

statute. R.C. 2151.414(E)(1) states:

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 placed outside the child's home. In determining

whether the parents have substantially remedied those conditions, the -10-

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.

{¶16} Appellant contends that she did complete her case plan and that she

substantially remedied the problems that caused her child to be taken into custody by

JCDJFS, specifically referring to drug abuse and mental health issues. The record

reflects, however, that Appellant did not complete her case plan. Jennifer Yasho,

Appellant's caseworker at JCDJFS, made it clear that the case plan included many

items in addition to clean drug screens. The case plan required therapy and

counseling, including drug, alcohol, and family counseling, in order to insure that

there would be no future drug abuse and so that the child would have a stable living

environment. Appellant and Swearinger decided, on their own, that they were not

going to participate in all the required therapy and counseling sessions at JBHS.

Instead, they desired to be treated at South Hills Recovery Project. Whether or not

treatment at South Hills Recovery Project could have sufficed to satisfy the terms of

the case plan is irrelevant because there were almost no proper records from that

facility produced or admitted at trial. Appellant's counsel admitted at trial, and admits

on appeal, that the records were not certified. For this and other reasons, the

records were inadmissible at trial. Even if the documents had been admitted, they

were inconsistent, incomplete, and contradictory. They did not accurately indicate -11-

when Appellant started therapy, what the therapy consisted of, or the extent of her

progress. There is evidence that Appellant had been using Suboxone and Subutex,

opioid drugs used to replace the illegal drugs Appellant had been taking, but it is not

clear that she had a legal prescription for these drugs. This type of replacement drug

therapy was not part of Appellant's case plan and had not been approved by her

case worker or therapist.

{¶17} Appellant is correct that she had taken a number of drug tests and that

they came back negative. Any drug tests taken at South Hills Recovery Project,

though, would have been of doubtful value, since the tests were not randomly

ordered but were on a set schedule. Thus, Appellant could plan her drug use around

the testing days. The record indicates, though, that even if Appellant had periods

where she was free from illegal drugs, there were other factors of the case plan that

Appellant and Swearinger repeatedly failed and these other factors led to the court’s

ultimate decision. Appellant and Swearinger often would not attend parent aide

services meetings, skipping 22 of the 53 meetings, and they regularly showed up late

when they attended. They missed approximately 25 visits with the child and there

were periods of at least a month at a time when they failed to visit the child.

Swearinger complained that the parenting classes were a joke. There was no

evidence that Swearinger had successfully been treated for his mental health

problems. There was no evidence that Appellant could maintain a stable home

because neither she nor Swearinger had any source of income. Appellant's failure to

complete drug treatment is well-documented throughout the record. She was -12-

enrolled in JBHS Addiction and Recovery Services, but her case was closed on

December 18, 2012, due to non-compliance. She missed many group therapy

sessions prior to her discharge for non-compliance. By the time of the final custody

hearing, both parties had stopped attending any treatment at JBHS.

{¶18} Appellant cannot establish an abuse of discretion by simply citing one

aspect of the case plan while ignoring the many requirements of the plan that she

failed or disregarded. Appellant has not established any error on the part of the trial

court. Her two assignments of error are overruled and the judgment of the trial court

is affirmed.

Donofrio, J., concurs.

DeGenaro, P.J., concurs.