[Cite as In re H.L.R., 2021-Ohio-229.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: H.L.R. : : : Appellate Case No. 28894 : : Trial Court Case No. 2018-2284 : : (Appeal from Common Pleas Court- : Juvenile Division) : :
...........
OPINION
Rendered on the 29th day of January, 2021.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee, Montgomery County Children Services
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Appellant, Mother
.............
TUCKER, P.J. -2-
{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which terminated her parental rights and awarded
Montgomery County Children Services (“MCCS”) permanent custody of her child, H.L.R.
Mother contends the juvenile court erred by finding that an award of permanent custody
was in the child’s best interest.
{¶ 2} Because a review of the record shows clear and convincing evidence that
H.L.R. had been in the temporary custody of MCCS for 12 or more months out of a
consecutive 22-month period and that an award of permanent custody to MCCS was in
her best interest, we affirm.
I. Facts and Procedural Background
{¶ 3} H.L.R. was born in May 2011. She was born with hydrocephalus, a condition
in which excess fluid accumulates in the brain. As a result, H.L.R. has a shunt, or
drainage tube, which permits drainage of excess fluids from her brain to other areas of
the body where the fluid can be absorbed.
{¶ 4} In early 2018, MCCS learned that H.L.R. was missing an excessive amount
of school. In April 2018, MCCS scheduled a family conference in order to address the
issue. Mother failed to attend the meeting.1 In May 2018, MCCS filed a complaint
alleging H.L.R. to be a neglected and dependent child. Temporary custody was awarded
to MCCS, and H.L.R. was placed in foster care. A case plan was implemented; it
required Mother to obtain employment and housing, attend visitations with H.L.R., engage
in mental health treatment including anger management, and submit to drug screens as
1 MCCS was unable to ascertain the identity of H.L.R.’s father. -3-
requested.
{¶ 5} Once she was in foster care, it was determined H.L.R. had significant medical
and dental problems that Mother had not addressed. Specifically, H.L.R. had been
referred to a neurologist regarding recurrent headaches, but Mother had failed to take her
to the appointment.2 Mother also did not take H.L.R. to some of her regularly-scheduled
yearly neurological examination appointments. Further, vision issues can arise as a
result of hydrocephalus, yet Mother never took H.L.R. for a vision examination.
{¶ 6} It was also discovered that H.L.R. suffered from labial adhesions and eczema
and environmental and food allergies. The record demonstrates Mother had taken
H.L.R. to the emergency room at Children’s Hospital on five different occasions for
problems related to the allergies, but she failed to pursue suggested follow-up care.
While in foster care, H.L.R. was prescribed an Epipen, an inhaler, and Singulair for her
allergies and a steroid cream for her eczema. H.L.R. now sees a gynecologist regarding
to the labial adhesions for which she was prescribed treatment.
{¶ 7} The foster family also discovered that H.L.R. had significant tooth decay; she
underwent surgery for several tooth extractions and root canal procedures, and she got
four crowns and four fillings. The record shows that Mother took H.L.R. to a dentist only
one time, when she was approximately five years old.
{¶ 8} On June 12, 2019, the juvenile court granted a first extension of temporary
custody. A magistrate held a permanent custody hearing in December 2019, after which
the magistrate filed an order terminating Mother’s parental rights and awarding permanent
custody to MCCS. Mother filed objections, which were overruled, and the juvenile court
2 The record indicates that headaches can indicate a problem with the brain shunt. -4-
adopted the magistrate’s order awarding permanent custody to MCCS.
{¶ 9} Mother appeals.
II. Analysis
{¶ 10} Mother asserts the following as her sole assignment of error:
THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT
CUSTODY OF THE CHILD TO [MCCS].
{¶ 11} Mother asserts that the evidence did not support the finding that awarding
permanent custody to MCCS was in H.L.R.’s best interest. Her argument focuses
exclusively on her claim that she had met the goals of her case plan.
{¶ 12} A juvenile court's decision to terminate parental rights and grant permanent
custody to an agency of the State must be supported by clear and convincing evidence.
In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. Clear and convincing
evidence is evidence which will produce in the mind of the trier of fact “a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio
St. 469, 477, 120 N.E.2d 118 (1954). The evidence must be more than a
preponderance, but it need not rise to the level of certainty that is required beyond a
reasonable doubt in criminal cases. Id.
{¶ 13} In reviewing a permanent custody decision, “we apply an abuse-of-
discretion standard, and we will not disturb such a decision on evidentiary grounds ‘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 the Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 6 -5-
(2d Dist.), citing In re L.C. at ¶ 14. The phrase “abuse of discretion” implies a decision
which is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 14} R.C. 2151.414(B)(1) establishes the following two-part test for courts to
apply when determining a motion for permanent custody to a public children services
agency:
Except as provided in division (B)(2) of this section, the court may grant
permanent custody of a child to a movant if the court determines at the
hearing held pursuant to division (A) of this section, by clear and convincing
evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency that filed the motion for permanent
custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, 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
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[Cite as In re H.L.R., 2021-Ohio-229.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
IN RE: H.L.R. : : : Appellate Case No. 28894 : : Trial Court Case No. 2018-2284 : : (Appeal from Common Pleas Court- : Juvenile Division) : :
...........
OPINION
Rendered on the 29th day of January, 2021.
MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Appellee, Montgomery County Children Services
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, Ohio 45434 Attorney for Appellant, Mother
.............
TUCKER, P.J. -2-
{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which terminated her parental rights and awarded
Montgomery County Children Services (“MCCS”) permanent custody of her child, H.L.R.
Mother contends the juvenile court erred by finding that an award of permanent custody
was in the child’s best interest.
{¶ 2} Because a review of the record shows clear and convincing evidence that
H.L.R. had been in the temporary custody of MCCS for 12 or more months out of a
consecutive 22-month period and that an award of permanent custody to MCCS was in
her best interest, we affirm.
I. Facts and Procedural Background
{¶ 3} H.L.R. was born in May 2011. She was born with hydrocephalus, a condition
in which excess fluid accumulates in the brain. As a result, H.L.R. has a shunt, or
drainage tube, which permits drainage of excess fluids from her brain to other areas of
the body where the fluid can be absorbed.
{¶ 4} In early 2018, MCCS learned that H.L.R. was missing an excessive amount
of school. In April 2018, MCCS scheduled a family conference in order to address the
issue. Mother failed to attend the meeting.1 In May 2018, MCCS filed a complaint
alleging H.L.R. to be a neglected and dependent child. Temporary custody was awarded
to MCCS, and H.L.R. was placed in foster care. A case plan was implemented; it
required Mother to obtain employment and housing, attend visitations with H.L.R., engage
in mental health treatment including anger management, and submit to drug screens as
1 MCCS was unable to ascertain the identity of H.L.R.’s father. -3-
requested.
{¶ 5} Once she was in foster care, it was determined H.L.R. had significant medical
and dental problems that Mother had not addressed. Specifically, H.L.R. had been
referred to a neurologist regarding recurrent headaches, but Mother had failed to take her
to the appointment.2 Mother also did not take H.L.R. to some of her regularly-scheduled
yearly neurological examination appointments. Further, vision issues can arise as a
result of hydrocephalus, yet Mother never took H.L.R. for a vision examination.
{¶ 6} It was also discovered that H.L.R. suffered from labial adhesions and eczema
and environmental and food allergies. The record demonstrates Mother had taken
H.L.R. to the emergency room at Children’s Hospital on five different occasions for
problems related to the allergies, but she failed to pursue suggested follow-up care.
While in foster care, H.L.R. was prescribed an Epipen, an inhaler, and Singulair for her
allergies and a steroid cream for her eczema. H.L.R. now sees a gynecologist regarding
to the labial adhesions for which she was prescribed treatment.
{¶ 7} The foster family also discovered that H.L.R. had significant tooth decay; she
underwent surgery for several tooth extractions and root canal procedures, and she got
four crowns and four fillings. The record shows that Mother took H.L.R. to a dentist only
one time, when she was approximately five years old.
{¶ 8} On June 12, 2019, the juvenile court granted a first extension of temporary
custody. A magistrate held a permanent custody hearing in December 2019, after which
the magistrate filed an order terminating Mother’s parental rights and awarding permanent
custody to MCCS. Mother filed objections, which were overruled, and the juvenile court
2 The record indicates that headaches can indicate a problem with the brain shunt. -4-
adopted the magistrate’s order awarding permanent custody to MCCS.
{¶ 9} Mother appeals.
II. Analysis
{¶ 10} Mother asserts the following as her sole assignment of error:
THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT
CUSTODY OF THE CHILD TO [MCCS].
{¶ 11} Mother asserts that the evidence did not support the finding that awarding
permanent custody to MCCS was in H.L.R.’s best interest. Her argument focuses
exclusively on her claim that she had met the goals of her case plan.
{¶ 12} A juvenile court's decision to terminate parental rights and grant permanent
custody to an agency of the State must be supported by clear and convincing evidence.
In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. Clear and convincing
evidence is evidence which will produce in the mind of the trier of fact “a firm belief or
conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio
St. 469, 477, 120 N.E.2d 118 (1954). The evidence must be more than a
preponderance, but it need not rise to the level of certainty that is required beyond a
reasonable doubt in criminal cases. Id.
{¶ 13} In reviewing a permanent custody decision, “we apply an abuse-of-
discretion standard, and we will not disturb such a decision on evidentiary grounds ‘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 the Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 6 -5-
(2d Dist.), citing In re L.C. at ¶ 14. The phrase “abuse of discretion” implies a decision
which is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 14} R.C. 2151.414(B)(1) establishes the following two-part test for courts to
apply when determining a motion for permanent custody to a public children services
agency:
Except as provided in division (B)(2) of this section, the court may grant
permanent custody of a child to a movant if the court determines at the
hearing held pursuant to division (A) of this section, by clear and convincing
evidence, that it is in the best interest of the child to grant permanent
custody of the child to the agency that filed the motion for permanent
custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, 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, 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. -6-
(c) The child is orphaned, and there are no relatives of the child who are
able to take permanent custody.
(d) 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, 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.
(e) The child or another child in the custody of the parent or parents from
whose custody the child has been removed has been adjudicated an
abused, neglected, or dependent child on three separate occasions by any
court in this state or another state.
{¶ 15} Here the juvenile court made the findings required to award MCCS
permanent custody. Specifically, the court found that H.L.R. had been in the custody of
MCCS for 12 or more months of a consecutive 22-month period and found that awarding
permanent custody to MCCS was in the child's best interest.
{¶ 16} We note the juvenile court found that H.L.R. could not be placed with Mother
within a reasonable time or should not be placed be placed with Mother. Because the
court found by clear and convincing evidence that H.L.R. had been in the temporary
custody of MCCS for 12 or more months of a consecutive 22-month period, the court
improperly applied R.C. 2151.414(B)(1)(a); that section specifies that it is not applicable -7-
in cases where the child has been in the temporary custody of one or more public children
services agencies or private child placing agencies for 12 or more months of a
consecutive 22-month period. In other words, “[t]he plain language of R.C.
2151.414(B)(1)(a) reveals that the subsection is only triggered when none of the
remaining three subsections are triggered.” In re H.D., 10th Dist. Franklin No. 13AP-
707, 2014-Ohio-228, ¶ 13, quoting In re Damron, 10th Dist. Franklin No. 03AP-419, 2003-
Ohio-5810, ¶ 9. Nevertheless, we find any error harmless because the court's decision
reflected it had considered R.C. 2151.414(B)(1)(a) in the alternative while also making its
finding under R.C. 2151.414(B)(1)(d).
{¶ 17} On appeal, Mother does not dispute the juvenile court's finding that R.H.
had been in the temporary custody of MCCS for 12 or more months of a consecutive 22-
month period. Instead, she argues that she had complied with her case plan, and
therefore the juvenile court’s decision regarding H.L.R.’s best interest was against the
weight of the evidence.
{¶ 18} Upon review, we find Mother's argument to be unpersuasive. The record
supported the conclusions that Mother failed to obtain housing and also failed to attend
her mental health counseling; thus, she failed to complete at least two of the requirements
set forth in her case plan. Further, even if we were to find that she had substantially
satisfied her case plan objectives, such a finding would not be dispositive of the best-
interest determination. In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12.
This court has recognized that, “[w]hen the focus is on the child's best interest, a trial
court conceivably could terminate parental rights even if a parent completed all of her
case-plan objectives.” (Citation omitted.) Id. -8-
{¶ 19} Regarding H.L.R.’s interaction with significant others, the record
demonstrated that she was bonded to Mother and that visits between the two generally
went well. However, H.L.R. was also bonded to her foster family, which included one of
her biological siblings. While H.L.R. had expressed a desire to live with Mother, she had
also expressed that she was happy and comfortable with her foster family.
{¶ 20} Regarding H.L.R.’s custodial history and her need for a legally secure
placement, we note that the child had been with her foster family since July 2018.
Further, MCCS had been involved with the family since 2017, when H.L.R.’s younger
sibling was discovered to be suffering from medical neglect. Mother failed to complete
her case plan concerning the sibling, and her parental rights were ultimately terminated.
Two other siblings lived with their paternal grandmother rather than with Mother.
{¶ 21} While Mother had completed parts of her case plan, she had failed to secure
adequate housing. Further, she quit therapy and indicated she did not believe there was
any reason to continue such therapy. The record also demonstrated an ongoing issue
with Mother’s anger, which had been directed to the foster parents and MCCS
caseworkers.
{¶ 22} Further, Mother was unwavering in her insistence she had never neglected
H.L.R. But the record unequivocally established she failed to attend to H.L.R.’s medical
needs and that she allowed H.L.R. to miss an excessive amount of school.
{¶ 23} The record showed that the foster family had been attentive to H.L.R.’s
needs. After she was placed in foster care, she began to regularly attend school but was
significantly behind her peers. The foster parents worked with the teachers, and H.L.R.
was placed on an I.E.P. and began to receive specialized services at school. She had -9-
improved significantly since her foster placement. And, as previously stated, her medical
needs were being met by the foster family. Finally, the foster family wished to adopt
H.L.R.
{¶ 24} As noted, R.C. 2151.414(E)(11) also applied in this case, as Mother had
had her parental rights terminated with regard to H.L.R.’s younger sibling and had failed
to present evidence that, notwithstanding the termination, she was capable of providing
a legally secure placement for H.L.R. Indeed, there was evidence that during visitations,
Mother instructed H.L.R. not to comply with the treatment for her labial adhesions.
Mother also continued to give the child chewing gum, despite being instructed not to do
so in light of H.L.R.’s dental issues.
{¶ 25} On this record, the juvenile court did not err in terminating Mother’s parental
rights and awarding permanent custody to MCCS; there was clear and convincing
evidence that H.L.R. had been in the temporary custody of MCCS for more than 12
months of a 22-month period and that an award of permanent custody was in the child’s
best interest.
{¶ 26} The sole assignment of error is overruled.
III. Conclusion
{¶ 27} Mother’s assignment of error being overruled, the judgment of the juvenile
court is affirmed.
HALL, J. and WELBAUM, J., concur. -10-
Copies sent to:
Mathias H. Heck, Jr. Sarah E. Hutnik Robert Alan Brenner Sara Barry Hon. Helen Wallace