[Cite as In re A.R., 2017-Ohio-5739.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: A.R. : JUDGES: D.R. : Hon. W. Scott Gwin, P.J. G.R. : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. : : Case No. 17-CA-17 : 17-CA-18 : 17-CA-19 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case Nos. F2015-0034, F2015-0035, F2015-0036
JUDGMENT: Affirmed
DATE OF JUDGMENT: July 3, 2017
APPEARANCES:
For Plaintiff-Appellant M.R. For Defendant-Appellee
CAROLYNN E. FITTRO WILLIAM C. HAYES Fittro Law, LLC Prosecuting Attorney 1335 Dublin Rd., Suite 104D Columbus, Ohio 43215 By: MANDY R. DELEEUW Assistant Prosecuting Attorney 20 S. Second Street, Fourth Fl. For Plaintiff-Appellant R.R. Newark, Ohio 43055
JERMAINE COLQUITT 33 W. Main St., Ste. 106 GUARDIAN AD LITEM Newark, Ohio 43055 MICHAEL DALSANTO 33 West Main St., Ste. 106 Newark, Ohio 43055 Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 2
Baldwin, J.
{¶1} Plaintiff-appellant M.R. appeals from the February 10, 2017 Judgment Entry
of the Licking County Court of Common Pleas, Juvenile Division, terminating her parental
rights and granting permanent custody of her three children to Licking County Job and
Family Services, Children Services Division.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant M.R. (appellant) is the mother of A.R. (DOB 9/22/02), D.R. (DOB
2/16/05) and G.R. (DOB 8/24/06). The children’s father is not a party to this appeal.
{¶3} On January 30, 2015, complaints were filed alleging that the three children
were dependent children. The three children had been removed from the family home the
day before due to issues of substance abuse and criminal activity. On January 30, 2015,
the children were placed in the emergency shelter care custody of Licking County Job
and Family Services (“Agency”). Following uncontested adjudicatory and dispositional
hearings on March 27, 2015, the children were found to be dependent and placed in the
temporary custody of the Agency.
{¶4} On June 8, 2016, the Agency filed a motion seeking permanent custody of
the children. A hearing on the motion was held before a Magistrate on October 17, 2016.
The children’s father did not appear at the hearing.
{¶5} At the hearing, appellant appeared via video conference due to her
incarceration. She testified that she was incarcerated at the Ohio Reformatory for Women
and was serving a sentence on multiple convictions. Appellant agreed that she had been
convicted of two counts of aggravated trafficking in drugs for Oxycodone and two counts
of aggravated trafficking in drugs for methamphetamines. Appellant also had been
convicted for aggravated possession of methamphetamines. In May of 2015, appellant Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 3
was sentenced to three years of community control, but her community control was
revoked in July of 2015 because she tested positive for pain pills. Appellant then was
sentenced to 18 months incarceration. Her requests for Judicial Release were denied.
Appellant testified that she would be getting released in 13 days and had not seen her
children since May of 2015, before her arrest.
{¶6} Appellant testified that while she was in prison, she participated in a
substance abuse treatment program and was selected to participate in the AOD Intensive
Prison Program. According to appellant, she started the one program in December of
2015 and the other in February of 2016, but was released from the program after getting
into a conflict with a women who she claimed had stolen items from her. Before her
release, appellant had attended two individual counseling sessions and had completed
10 weeks of the AOD program. When asked, appellant testified that she was not in a
relationship with the children’s father who also had been sentenced to prison for drug
convictions approximately the same time as appellant. She testified that her last contact
with him had been two days before and that she told him that he needed to turn himself
into his parole officer since he had failed to report to the officer.
{¶7} Appellant testified that when she was released from prison, she was going
to sign the case plan to set up visits with her children and get two jobs to save up money.
When asked where she planned to live, she testified that she was going to stay at her
mentally handicapped sister’s and that “[t]hey said if I go to a homeless shelter, then they
can help me get into a place.” Transcript at 22. Appellant testified that she was going to
get her driving privileges back.
{¶8} On direct examination, appellant testified that she was working on getting
her GED and that she had received high marks on her inmate evaluation report while Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 4
working at Correctional Food Services. Appellant indicated that she had completed a five
week parenting class and done well in the class and that she had been the primary
caretaker of her children until the Agency got involved in January of 2015. According to
appellant, her relationship with her children was very close. She testified that she kept in
contact with her daughters by phone, but was told by her social worker not to contact her
sons over the phone, so she kept in contact with them via letters and cards. Appellant,
when asked about where she would look for employment, testified that she would look at
McDonald’s and also that one of her family members could get her a job through a temp
agency. She testified that if she did not get her driving privileges initially, she had people
who could transport her to jobs. Appellant indicated that she wanted a six month extension
from the court so that she could get work on her plan. Appellant also testified that her
back up plan was that her father, who had custody of another child of appellant’s, would
get legal custody of the three children who are the subject of this case. According to her,
he had passed a home study.
{¶9} Appellant, who was questioned about her drug use, testified that while in
prison, she had been attending NA and AA. She testified that once she was released from
prison, she could go back to LAPP (Licking County Alcohol Prevention Program) and
attend meetings. Appellant further testified that although she could have obtained drugs
while in prison, she chose not to do so to and passed random drug screens. Appellant
further indicated that she intended to have a sponsor once she was released in order to
maintain her sobriety.
{¶10} Kelcey Weisenstein, a social worker with Licking County Children’s
Services, testified that she was assigned to the case on February 13, 2015 to develop a
case plan. She testified that there had been a drug raid at appellant’s home on January Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 5
29, 2015 and that appellant and her husband were arrested. Weisenstein testified that
the case plan concerned substance abuse and stable housing. According to Weisenstein,
appellant was incarcerated at the onset of the case plan, but by the time she was assigned
the case, appellant was out of jail. The following testimony was adduced when she was
asked what concerns were identified on the case plan as they relate to appellant:
{¶11} A. Okay. Drug and alcohol counseling. Follow through with any treatment.
Stable income; stable housing appropriate for the children; meeting all their basic needs.
Negative drug screens. No more criminal involvement. Not hanging around people using
or abusing substances. Signing releases. I believe that’s it.
{¶12} Transcript at 46.
{¶13} Appellant was asked to complete an AOD assessment and follow the
recommendation, complete drug screens, and obtain income and provide verification.
She also was required to obtain appropriate housing and attend her visits. Weisenstein
testified that she did not believe that appellant had met the objectives of her case plan
because “on her AOD paperwork it said she was discharged unsuccessfully with one two
individual meetings with the therapist.” Transcript at 49. When asked if she believed that
appellant had remedied the problems that existed at the onset of the case, she indicated
that appellant had not and had not completed a case plan. Weisenstein voiced concerns
about appellant’s sobriety and housing and noted that she had a relapse right before she
was sent to prison.
{¶14} Weisenstein was questioned about the children. She testified that all three
were on IEPs (individualized education programs). A.R., according to her, had struggled
in school and was suspended for saying that she had a bomb. A.R. was removed from
the foster home that she was in at the time and placed into another foster home. Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 6
Weisenstein further testified that A.R. had been suspended for saying inappropriate
things to a girl and had been threatening other girls and disobeying authority figures. A.R.
had been sent to a gender specific program and completed the same successfully.
According to Weisenstein, A.R.’s behavior was up and down and she expressed
frustration with her parents.
{¶15} While G.R. was doing very well, D.R. had been removed from his foster
home due to aggressive behavior and defiance of authority figures. He was sent to a
treatment center where he was doing better. Weisenstein testified that when G.R. and
D.R. had been placed in the same foster home at the onset of the case, D.R. was touching
G.R. inappropriately. She testified that G.R. recently also was exhibiting sexualized
behaviors. Weisenstein testified that G.R. was doing very well in his foster home and that
he wanted to be adopted by them.
{¶16} When asked whether she had looked into relative or kinship placement for
the three children, Weisenstein testified as follows:
A. Other than J.S. [appellant’s father] there’s no appropriate family members.
And, as of right now, the agency doesn’t believe it’s in the best interest of the
children to be - - to be placed there.
Q. And could you elaborate as to why.
A. Due to the children’s significant behaviors. D.R. and G.R., I don’t think it’s in
their best interest to be in the same bedroom due to the sexualized behaviors. And
the girls - - excuse me. [J.S.] has one extra bedroom and I - - due to the intense
behaviors of A.R. and also [J.S.’s] health is still a concern. He has, I believe, stage
four lung cancer and is completing his treatment, but again, that’s a big concern Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 7
as well, just his health, and if he’s going to be able to maintain four children in his
home. I don’t - - I don’t think that’s even fathomable.
{¶17} Transcript at 55. She testified that no other relatives or kinship placement
had come forward and that appellant had not had face-to-face contact with the children
since May of 2015. While appellant had written letters to them, the last letter that
Weisenstein found in her file was from February of 2016. According to Weisenstein,
appellant had not alleviated the problems that led to removal. She testified that other than
creating a case plan, she offered appellant and her husband referrals to LAPP and visits
and provided monthly contact with the children unless they were incarcerated. She was
of the opinion that the children should not be placed with either appellant or their father
and that it was in the children’s best interest for permanent custody to be granted to the
agency in hopes for adoption of all three of the children.
{¶18} The Guardian ad Litem recommended that the children be placed in the
permanent custody of the Agency.
{¶19} The Magistrate, in a Decision filed on November 4, 2016, recommended
that the motion for permanent custody be granted. Appellant then filed objections to the
Magistrate’s Decision. As memorialized in a Judgment Entry filed on February 10, 2017,
the trial court denied the objections and approved and adopted the Magistrate’s Decision.
The trial court terminated appellant’s parental rights and granted permanent custody of
the three children to the Agency.
{¶20} Appellant now raises the following assignments of error on appeal:
{¶21} I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE
BEST INTERESTS OF A.R., D.R. AND G.R. TO PERMANENTLY TERMINATE THE Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 8
PARENTAL RIGHTS OF THEIR PARENTS AND PLACE THEM IN THE PERMANENT
CUSTODY OF LICKING COUNTY JOB AND FAMILY SERVICES, CHILDREN’S
SERVICES DEPARTMENT.
{¶22} II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN
IT FOUND BY CLEAR AND CONVINCING EVIDENCE THAT A.R., D.R., AND G.R.
COULD NOT BE PLACED WITH THEIR MOTHER WITHIN A REASONABLE TIME OR
SHOULD NOT BE PLACED WITH THEIR MOTHER.
I, II
{¶23} Appellant, in her two assignments of error, challenges the trial court’s order
terminating her parental rights and granting permanent custody of her three children to
the Agency. Appellant specifically challenges the trial court’s findings that the children
could not and should not be placed with her within a reasonable time and that it was in
their best interest for permanent custody to be granted.
{¶24} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
the essential elements of the case supports the trial court's judgment, an appellate court Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 9
must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶25} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997–Ohio–260, 674 N.E.2d 1159.
{¶26} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶27} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply: (a) the child is not
abandoned or orphaned, and the child cannot be placed with either of the child's parents
within a reasonable time or should not be placed with the child's parents; (b) the child is
abandoned; (c) the child is orphaned and there are no relatives of the child who are able
to take permanent custody; or (d) the child has been in the temporary custody of one or
more public children services agencies or private child placement agencies for twelve or
more months of a consecutive twenty-two month period ending.
{¶28} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, a trial court Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 10
will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶29} In the case sub judice, the trial court found that R.C. 2151.414(B)(1)(a)
applied. Pursuant to R.C. 2151.414(B)(1)(a), the trial court found the children could not
be placed with either of the children's parents within a reasonable time or should not be
placed with the children's parents. In making this decision, the trial court must consider
the factors of R.C. 2151.414(E). The trial court specifically found that R.C.
2151.414(E)(1), (4) , (14) and (16) applied to appellant.
{¶30} R.C. 2151.414 states, in relevant part, as follows:
{¶31} (E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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 or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code 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:
{¶32} (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 placed outside the child's home. In determining whether Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 11
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.
{¶33} ;...
{¶34} (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;...
{¶35} (13) The parent is repeatedly incarcerated, and the repeated incarceration
prevents the parent from providing care for the child....
{¶36} (16) Any other factor the court considers relevant.
{¶37} In the case sub judice, there was testimony that appellant was unsuccessful
in addressing her substance abuse problems. Although appellant had been placed on
community control in May of 2015 after drug convictions, she tested positive for drugs on
June 1, 2015. Her community control was revoked and she was sentenced to 18 months
in prison. While appellant was enrolled in an intensive prison program for alcohol and
other drugs, she was kicked out of the program after getting into a conflict with another
inmate. In addition, during her time in the program, appellant only completed two
individual counseling sessions. As noted by appellee, because appellant was unable to
complete an AOD assessment, pass a drug test, obtain income of housing, she made no
progress on her case plan. Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 12
{¶38} In addition, there was testimony at the hearing that appellant had been
incarcerated since June of 2015 and that her last face-to-face contact with her children
was in May of 2015. Appellant last communicated with her children in February of 2016.
Due to her repeated incarceration, appellant was unable to care for her children.
{¶39} Based on the foregoing, we find that there was clear and convincing
evidence supporting the trial court's finding that appellant had continuously and
repeatedly failed to substantially remedy the conditions causing the children to be placed
outside the home and that the children could not be placed with either parent within a
reasonable time or should not be placed with either parent.
{¶40} Appellant also challenges the trial court's finding that it was in the best
interest of the children for permanent custody to be granted to the agency. R.C.
2151.414(D) states as follows:
{¶41} (1) In determining the best interest of a child at a hearing held pursuant to
division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353
or division (C) of section 2151.415 of the Revised Code, the court shall consider all
relevant factors, including, but not limited to, the following:
{¶42} (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;
{¶43} (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;
{¶44} (c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-month period, Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 13
or the child has been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the
Revised Code, the child was previously in the temporary custody of an equivalent agency
in another state;
{¶45} (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;
{¶46} (e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶47} There was testimony at the hearing that the children, all whom had
“significant behaviors” and were on IEPs, had been in the custody of the Agency since
January of 2015. Transcript at 55. Weisenstein testified that G.R. was in a foster-to-adopt
placement and wanted to be adopted by his foster family. Weisenstein testified that while
the other two child did not have adoptive homes, their behavior had improved, making
adoption more possible. While the Guardian ad Litem, at the hearing, indicated that A.R.
and D.R. indicated to him that they either wanted to be with their grandfather, who has
lung cancer, or reunified with their parents, he did not believe that it was in the best
interest because he did not believe that appellant and the children’s father could provide
a stable environment. He stated at the hearing that the children needed a legally secure
placement and that the evidence showed that such placement could not be achieved
without a grant of permanent custody. Licking County, Case No. 17-CA-17, 17-CA-18, 17-CA-19 14
{¶48} Based on the foregoing, we find that there was clear and convincing
evidence that it was in the best interest of the children for permanent custody to be
granted to the agency.
{¶49} Appellant's two assignments of error are, therefore, overruled.
{¶50} Accordingly, the judgment of the Licking County Court of Common Pleas,
Juvenile Division, terminating appellant’s parental rights and granting permanent custody
of appellant’s three children to Licking County Job and Family Services, Children Services
Division is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Earle Wise, J. concur. [Cite as In re A.R., 2017-Ohio-5739.]