In re A.R.

2023 Ohio 390

• Court: Ohio Court of Appeals
• Decided: February 10, 2023
• Docket: 29604
• Status: Published

Opinion

[Cite as In re A.R., 2023-Ohio-390.]

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

IN RE: A.R. : : : C.A. No. 29604 : : Trial Court Case No. G-2020-003998- : 0C,0F : : (Appeal from Common Pleas Court- : Juvenile Division) :

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OPINION

Rendered on February 10, 2023

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

ROBERT ALAN BRENNER, Attorney for Appellant

.............

LEWIS, J.

{¶ 1} D.R., the biological mother of A.R., appeals from a judgment granting

permanent custody of A.R. to Montgomery County Children’s Services (“MCCS”).1 D.R.

contends that the trial court erred in finding that it was in the best interest of A.R. for

1 To protect the identify and privacy of a minor child, we will refer to the child and her biological mother by their initials. -2-

permanent custody to be granted to MCCS. For the reasons that follow, we affirm the

trial court’s judgment.

I. Facts and Course of Proceedings

{¶ 2} On October 30, 2020, MCCS filed an abuse and dependency complaint in

the Montgomery County Court of Common Pleas, Juvenile Division. According to the

complaint, A.R. was born at Kettering Medical Center on August 3, 2020. She tested

positive for fentanyl, methamphetamine, amphetamine, and alprazolam. D.R. tested

positive for amphetamines and benzodiazepine at the time of A.R.’s birth. A.R. suffered

severe withdrawal symptoms and was transferred to Dayton Children’s Hospital for

treatment. A.R. remained there until she was discharged to Brigid’s Path on September

1, 2020. The complaint alleged that D.R. did not have income or housing and that she

refused the agency’s referral to Family Treatment Court. MCCS requested that the trial

court adjudicate A.R. an abused and dependent child and grant a preferred disposition of

temporary custody to MCCS.

{¶ 3} Following a hearing, the magistrate issued an interim order finding that

MCCS was in the best position to provide for the health, safety, welfare, and overall well-

being of A.R. The magistrate noted that the primary concerns with D.R. were issues

relating to parenting, substance abuse, housing, and income. Interim custody was

granted to MCCS. On January 8, 2021, the guardian ad litem filed her report with the

court, recommending temporary custody to MCCS. On January 15, 2021, the magistrate

granted temporary custody of A.R. to MCCS with an expiration date of October 30, 2021. -3-

The magistrate noted that MCCS had filed D.R.’s case plan with the court.

{¶ 4} An initial adjudicatory hearing was held before the magistrate on September

29, 2021. Following the hearing, the magistrate issued an interim and final order. The

magistrate found that MCCS had made reasonable efforts to implement a permanency

plan. The magistrate reiterated the concerns relating to D.R.’s parenting, substance

abuse, housing, and income.

{¶ 5} The magistrate held a custody hearing on January 11, 2022. Brooke L.

(“Brooke”), A.R.’s foster mother, testified that she had been A.R.’s foster parent since

November 2000. Id. at 10-11. When she and her husband first became A.R.’s foster

parents, Brooke took a month off from work in order to bond with A.R. Id. at 21-22. Both

foster parents were bonded with A.R. Id. at 22-23. Brooke’s husband engaged in many

outdoor activities with A.R. Id. They also had a younger foster daughter with whom

A.R. had taken on the big sister role. Id. at 23-24. Brooke and her husband intended

to adopt A.R. Id. at 26.

{¶ 6} When Brooke first became A.R.’s foster parent, there were concerns about

drug exposure in utero and hepatitis C exposure. Id. at 11-12. Under Brooke’s care

and the Help Me Grow program, there are no longer any concerns about the previous

drug and hepatitis C exposure. Indeed, A.R. is advanced in some areas and on track in

other areas. Id. at 11-15. Brooke had taught A.R. some sign language and Spanish to

help with communication. Id. at 25.

{¶ 7} Brooke had maintained a cordial relationship with D.R. Id. at 15. At the

beginning of the foster parenting, D.R. was scheduled to visit with A.R. for two hours on -4-

Mondays. Brooke characterized D.R.’s visits as sporadic. D.R. was sometimes early,

late, or a no-show. Id. at 16-17, 29-30. The visits with D.R. were suspended

permanently in April 2021 due to legal issues involving an outstanding warrant against

D.R. Id. at 17. There had been no in-person visits or virtual contact between D.R. and

A.R. since April 2021. D.R. had reached out 4-5 times since that time asking for photos

of A.R. or asking how she was doing. Id. at 18-20. Brooke stated that if D.R. reached

a healthy place in her life, she (Brooke) would want A.R. to know that she had a biological

mother who loved her. Id. at 28-29. During the foster care, there had been no contact

at all between A.R. and her alleged biological father. Id. at 21.

{¶ 8} Emily Thompson, A.R.’s ongoing caseworker at MCCS, testified that she

received the referral involving A.R. and her biological mother in August 2020, when A.R.

tested positive for drugs at birth. At that time, D.R. did not have stable housing, reliable

income, or sufficient baby supplies. Id. at 34. A.R. was referred to Brigid’s Path, which

provided an opportunity for D.R. to bond with A.R. and receive drug treatment. But D.R.

failed to remain in treatment, which led to MCCS’s seeking a temporary custody order.

Id. at 34-35.

{¶ 9} Thompson stayed in regular contact with D.R. following the temporary award

of custody. Id. at 36-38. Thompson discussed D.R.’s case plan with her and gave her

a copy of the plan. Id. at 39-40. The case plan objectives included the following:

complete a substance use disorder assessment, complete a mental health assessment,

follow the recommendations of both assessments, establish housing and income to meet

A.R.’s basic needs, sign any releases of information that were needed, complete -5-

parenting classes, visit with A.R., and have random drug screens. Id.

{¶ 10} D.R. had opportunities to receive treatment through Project Cure and at

treatment centers, but she did not complete these programs due to drug relapses. Id. at

48-51. Thompson had been unable to verify any of D.R.’s alleged employment. Further,

D.R. had not found any stable housing, instead alternating between staying at her

boyfriend’s place or at her mother’s. Id. at 53-56.

{¶ 11} From September 2020 to April 2021, D.R.’s visitation with A.R. was

sporadic, despite Thompson’s calling her with a reminder the morning of the visits. Id.

at 58. In March 2021, D.R. pled guilty to possession of heroin. In April 2021, a capias

was issued for D.R.’s arrest. Id. at 41; State’s Exhibits 1, 2. D.R.’s visits were canceled

while she had the outstanding warrant. D.R. failed to resolve the warrant issue and

ultimately was arrested a few months later. Id. at 58-60. Thompson stated that drug

issues and the outstanding warrant were why D.R. did not visit A.R. between April and

October 2021. Id. at 62-63. Since October 2021, D.R. had been participating in the

MonDay program in prison. Since beginning this six-month program, D.R. also had been

participating in the court-required programs relating to employment and parenting. Id. at

47, 74. Thompson was concerned that D.R. would not be doing these programs if they

were not court-ordered. Id. at 82-83.

{¶ 12} D.R.’s family members were deemed inappropriate for placement of A.R.

For example, D.R.’s maternal grandmother used illegal substances. Id. at 67-69.

Thompson did not believe D.R. had a significant bond with A.R. On the other hand,

Thompson believed that A.R. had bonded with her foster parents, as evidenced by A.R.’s -6-

seeking comfort with Brooke and the smiling and eye contact. Id. at 80. According to

Thompson, MCCS provided substitute care, home studies, information, and referrals to

D.R. Id. at 70-71.

{¶ 13} Finally, D.R. testified at the hearing. As of the hearing date, she was

focusing on remaining sober and getting her daughter back. Id. at 85-86. She believed

she would be able to reunify with A.R. within six months of the hearing. D.R. stated that

MCCS had never helped her obtain housing and that it had never been explained to her

that she needed to be clean before MCCS would help with housing. Id. at 86.

According to D.R., she had completed an employment readiness program in December

2021 and had started parenting classes, with an expected completion date of February

24, 2022. Id. at 87. She believed that A.R. had bonded with her, as evidenced by A.R.’s

staring at her, grabbing her cheeks, and playing back and forth with D.R. Id. at 88. The

last time D.R. had held A.R. was in April 2021. Id. at 96. D.R. blamed some missed

scheduled visitation sessions on the foster mom’s leaving before D.R. arrived. Id. at 89.

However, she admitted that she had not had any transportation issues and arrived late

for some of the canceled sessions. Id. at 98-99. D.R. had not used fentanyl since

September 2021 but conceded that she had suffered relapses over the years. Id. at 91-

95. D.R. believed she was addressing her problems and wanted to do whatever it took

to get her daughter back. Id. at 90, 100.

{¶ 14} On February 2, 2022, following the dispositional hearing, the magistrate

granted permanent custody of A.R. to MCCS and terminated legal custody of D.R. The

biological parents of A.R. were divested of all parental rights, privileges, and obligations, -7-

including all residual rights and obligations.

{¶ 15} On February 15, 2022, D.R. filed objections to the magistrate’s decision.

According to the objections, D.R. “was in case plan services and working towards

reunification. The child had only been removed for about a year and two extensions

were possible to permit reunification.” On August 1, 2022, after the transcript of the

January 11, 2022 hearing was completed, D.R. filed supplemental objections to the

magistrate’s February 2, 2022 decision and requested a hearing to submit additional

evidence. D.R. contended that she was no longer incarcerated, was actively working on

her case plan, and had maintained sobriety. She stated that, “[a]s two extensions of

temporary custody were still available and mother is making progress, she would ask for

the court to allow her that opportunity to reunify with her child.”

{¶ 16} On September 1, 2022, the trial court overruled D.R.’s objections to the

magistrate’s decision, granted MCCS’s motion for permanent custody of A.R., and

terminated D.R.’s legal custody and parental rights, privileges, and obligations. D.R.

filed a timely notice of appeal from the trial court’s final order.

II. The Trial Court Did Not Abuse Its Discretion in Terminating D.R.’s Parental

Rights

{¶ 17} D.R.’s sole assignment of error states:

THE JUVENILE COURT ERRED WHEN IT GRANTED

PERMANENT CUSTODY OF THE CHILD TO [MCCS].

{¶ 18} We will not overturn a juvenile court's decision to terminate parental rights -8-

“if the record contains competent, credible evidence by which the court could have formed

a firm belief or conviction that the essential statutory elements for a termination of parental

rights have been established.” In re E.D., 2d Dist. Montgomery No. 26261, 2014-Ohio-

4600, ¶ 7, citing In re Forrest S., 102 Ohio App.3d 338, 344-345, 657 N.E.2d 307 (6th

Dist.1995). “We review the trial court's judgment for an abuse of discretion.” Id., citing In

re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48 (applying an abuse of

discretion standard to the trial court's findings under R.C. 2151.414).

{¶ 19} “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), quoting Huffman

v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). “It is to be expected

that most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” Id.

{¶ 20} Further, “[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). Specifically, since “[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. However, this discretion, while broad, is “not

absolute” and is guided by statutory language. Id. -9-

{¶ 21} R.C. 2151.414 sets out specific findings a juvenile court must make before

granting an agency's motion for permanent custody of a child. In re C.F., 113 Ohio St.3d

73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. The court must find by clear and convincing

evidence (1) that one or more of the conditions in R.C. 2151.414(B)(1)(a) through (e)

applies and (2) that a grant of permanent custody is in the child's best interest. R.C.

2151.414(B)(1). “ ‘Clear and convincing evidence is that level of proof which would

cause the trier of fact to develop a firm belief or conviction as to the facts sought to be

proven. * * * An appellate court will not reverse a trial court's determination concerning

parental rights and child custody unless the determination is not supported by sufficient

evidence to meet the clear and convincing standard of proof.’ ” (Citations omitted.) In

re A.L., 2d Dist. Montgomery No. 26772, 2016-Ohio-423, ¶ 52, quoting In re Rishforth, 2d

Dist. Montgomery No. 20915, 2005-Ohio-5007, ¶ 11.

{¶ 22} D.R. contends that granting permanent custody of A.R. to MCCS was not

in the best interest of A.R. Rather, D.R. believes an additional extension of temporary

custody should have been granted instead. According to D.R., she would have been

ready to reunite with A.R. within six months of the January 2022 hearing. Since D.R.

limits her assignment of error to the issue of whether the trial court properly found that a

grant of permanent custody to MCCS was in A.R.’s best interest, we will limit our review

to this finding made by the trial court.

{¶ 23} In deciding a child’s best interest, courts analyze factors set forth in R.C.

2151.414(D)(1)(a)-(e) and (E). These include, but are not limited to: “1) the interaction

and interrelationship of the child with the child's parents, relatives, foster parents and any -10-

other person who may significantly affect the child; (2) the wishes of the child; (3) 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; (4) 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; and (5) whether any of the

factors in R.C. 2151.414(E)(7) through (11) are applicable.” In re S.J., 2d Dist.

Montgomery No. 25550, 2013-Ohio-2935, ¶ 15, citing R.C. 2151.414(D).

{¶ 24} The factors in R.C. 2151.414(E)(7) through (11), which are referred to in

R.C. 2151.414(D)(1)(e), involve a parent's having been convicted of or pleaded guilty to

specific criminal offenses against the child, the child's sibling or another child who lived

in the parent's household; a parent's withholding medical treatment or food from the child;

a parent's repeatedly placing the child at substantial risk of harm because of alcohol or

drug abuse; a parent's abandoning the child; and a parent's having had parental rights as

to the child's sibling involuntarily terminated. There was no evidence presented at the

hearing relating to these particular factors. Therefore, we will focus our review on the

best interest factors enumerated in R.C. 2151.414(D)(1)(a)-(d).

{¶ 25} The trial court considered and analyzed each of the best interest factors set

forth in R.C. 2151.414(D)(1). After summarizing the evidence presented by the parties

at the hearing, the trial court concluded:

After considering all relevant factors, the Court finds by clear and

convincing evidence that permanent custody to the Agency is in the child’s -11-

best interest.

Mother has failed to address her Case Plan objectives and the

alleged father has failed to establish paternity * * *. Mother was

incarcerated at the time of the hearing and intended to enter into a sober

living community upon release, however there was no information provided

as to whether A.R. could be placed with Mother in this facility or if such a

placement was proper for a young child.

Consequently, and unfortunately, neither parent is a suitable option

for custody of the child. Further, the Court finds that there are no relatives

or non-relatives able to care for the child. Finally, the Court finds that the

child’s most significant relationship is with the foster family, with whom she

has lived since November 2020.

September 1, 2022 Decision, p. 11.

{¶ 26} The evidence presented at the custody hearing supported the trial court’s

findings. Brooke, A.R.’s foster mother, testified about how A.R. had bonded with her,

her husband, and another foster child. Thompson, A.R.’s ongoing caseworker at MCCS,

confirmed that this was the case. D.R., however, had not visited with A.R. since April

2021. Thompson stated that she did not believe D.R. had a significant bond with A.R.

Further, the testimony presented at the hearing supported a finding that A.R. needed a

legally secure permanent placement and that such a placement could not be achieved

without a grant of permanent custody to the agency. Brooke and Thompson testified

about how many chances D.R. had had to work on her case plan and visit with A.R. But -12-

D.R. had several drug relapses and was unable to provide stable housing or show proof

of consistent income. Also, D.R. did not take advantage of the resources or referrals

provided by MCCS. D.R. did testify that since her time in prison, she had been working

on some of the elements of her case plan. Thompson, however, was concerned that

D.R. would not be completing certain programs if they had not been court-ordered.

{¶ 27} The record before us contains competent, credible evidence by which the

trial court could have formed a firm belief or conviction that the grant of permanent custody

to MCCS was in A.R.’s best interest. Therefore, the sole assignment of error is

overruled.

III. Conclusion

{¶ 28} Having overruled the assignment of error, the judgment of the trial court is

affirmed.

WELBAUM, P.J. and EPLEY, J., concur.