In re R.G.

2023 Ohio 592

• Court: Ohio Court of Appeals
• Decided: March 1, 2023
• Docket: 30453, 30454
• Status: Published

Opinion

[Cite as In re R.G., 2023-Ohio-592.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

IN RE: R.G. C.A. Nos. 30453 T.M. 30454

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nos. DN 21 03 0184 DN 21 03 0185

DECISION AND JOURNAL ENTRY

Dated: March 1, 2023

FLAGG LANZINGER, Judge.

{¶1} Appellant, T.M. (“Mother”), appeals from a judgment of the Summit County Court

of Common Pleas, Juvenile Division, that terminated her parental rights and placed her minor

children in the permanent custody of Summit County Children Services Board (“CSB”). This

Court affirms.

I.

{¶2} Mother is the biological mother of R.G., born October 5, 2016; and T.M., born

August 17, 2009. The children’s fathers had minimal involvement in the trial court proceedings

and did not appeal from the permanent custody judgment.

{¶3} During a prior involuntary case in 2018 and 2019, the juvenile court removed these

children from Mother’s custody because of her substance abuse problem. The children remained 2

placed outside her home in that case for more than one year. After Mother achieved a sustained

period of sobriety, the children were returned to her legal custody and the case was closed.

{¶4} Several months later, however, CSB filed new complaints, alleging that R.G. and

T.M. were neglected and dependent children because Mother had smoked crack cocaine and

marijuana on the afternoon of March 9, 2021, while at least T.M. was present in the home. The

juvenile court placed the children in the emergency temporary custody of CSB the same day.

{¶5} CSB’s complaint alleged the following relevant facts. T.M. was at home,

participating in an online class for school. During a break in his online class, T.M. left the room

with his computer and its camera still on. School personnel who were monitoring T.M.’s online

class saw Mother come into the room with a shoe box, from which she removed several items.

When they saw Mother put a powdery substance into a glass pipe and smoke it, they contacted

Akron Police.

{¶6} When the police came to her home later that day, Mother admitted that she had

been smoking marijuana but denied smoking crack cocaine. Mother tested positive, however, for

both marijuana and cocaine. Moreover, Mother later admitted that the children were removed

from her custody because she had been “caught on [T.M.’s] camera” smoking crack cocaine.

{¶7} Mother stipulated to the facts alleged in the complaint and the juvenile court

adjudicated the children dependent. The court placed the children in the temporary custody of

CSB and adopted the case plan as an order of the court. The case plan focused primarily on Mother

addressing her long-standing substance abuse problem. During the next several months, although

Mother engaged in some drug treatment, she continued to test positive for cocaine.

{¶8} CSB moved for permanent custody, alleging that Mother had failed to remedy the

conditions that caused the children to remain placed outside the home and that permanent custody 3

was in the children’s best interest. See R.C. 2151.414(B)(1)(a); R.C. 2151.414(E)(1); R.C.

2151.414(D)(1). Mother and the children, through counsel, alternatively requested that the trial

court grant Mother legal custody of the children or extend temporary custody for another six

months.

{¶9} Following an evidentiary hearing, the trial court terminated parental rights and

placed R.G. and T.M. in the permanent custody of CSB. Mother appeals and raises three

assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FOUND THAT THE FIRST PRONG OF THE PERMANENT CUSTODY TEST WAS MET UNDER R.C. 2151.414(B)(1)(A) AND 2151.414(E)(1) BECAUSE THE TRIAL COURT’S DECISION WAS BASED ON AN INCORRECT FACT.

{¶10} Mother’s first assignment of error is that the trial court’s finding on the first prong

of the permanent custody test was not supported by the evidence. Mother cites to Juv.R.

40(D)(3)(b)(iv) and a plain error standard of review. The permanent custody hearing was not held

before a magistrate, however, but was held before the juvenile judge. By its explicit terms, Juv.R.

40 applies only to proceedings held before magistrates and is not applicable to this appeal. This

Court generally reviews a permanent custody decision issued after a hearing before the trial judge

to determine whether it was against the manifest weight of the evidence. See, e.g., In re H.S., 9th

Dist. Summit No. 30162, 2022-Ohio-1082, ¶ 8; In re G.W., 9th Dist. Summit No. 29966, 2021-

Ohio-3430, ¶ 10.

{¶11} In considering whether the juvenile court’s judgment is against the manifest weight

of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the

credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder 4

of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]

must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.)

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,

this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.

{¶12} Before a juvenile court may terminate parental rights and award permanent custody

of a child to a proper moving agency, it must find clear and convincing evidence of both prongs

of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary

custody of the agency for at least 12 months of a consecutive 22-month period; the child or another

child of the same parent has been adjudicated abused, neglected, or dependent three times; or that

the child cannot be placed with either parent, based on an analysis under R.C. 2151.414(E); and

(2) that the grant of permanent custody to the agency is in the best interest of the child, based on

an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re

William S., 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will

“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368

(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶13} The trial court found that the first prong of the permanent custody test was satisfied

in this case because the children could not be returned to Mother’s custody within a reasonable

time or should not be returned to her custody because she had failed “continuously and repeatedly

to substantially remedy the conditions causing the child[ren] to be placed outside the child[ren]’s

home.” R.C. 2151.414(E)(1). Mother asserts that the trial court’s judgment is based on an

incorrect statement of fact: that the initial reason for the children’s removal from the home was

Mother’s drug use “in the presence of her children.” 5

{¶14} Mother does not dispute that the trial court had evidence before it that the children

were removed from her custody because of her drug use. In fact, at the hearing, she admitted that

she was “caught on camera” smoking crack cocaine while at least T.M. was present in the home.

Her sole argument is about the meaning of the court’s statement that she used drugs “in the

presence of her children.” Mother maintains that, because neither child was in the same room with

her when she used the drugs, she did not use the drugs in the children’s “presence.”

{¶15} Mother cites no legal authority, or even a dictionary definition, to support her

argument that the trial court’s statement that the children were “in her presence” necessarily meant

that her children were present in the same room as she, rather than present in her home, while she

was using drugs. At least one of the children, T.M., was present in the home while Mother smoked

crack cocaine during the afternoon while she was responsible for caring for him.

{¶16} Mother admittedly smoked cocaine in the room in which T.M. had just been

participating in online schooling. Presumably, he returned to that room shortly afterward, after his

break was over, and fumes were likely still in the air. Mother has failed to demonstrate that the

trial court’s statement about Mother using drugs in the “presence” of the children was erroneous.

{¶17} Moreover, this Court’s review of the trial court’s finding under R.C.

2151.414(E)(1) should not focus on this isolated statement made by the trial court. This Court

instead examines whether the evidence supported the trial court’s conclusion that Mother failed to

substantially remedy the conditions that caused the initial removal of the children as well as their

ongoing removal from the home. See In re J.H., 9th Dist. Summit No. 24555, 2009-Ohio-2223, ¶

9. Mother does not dispute that the children were removed from her custody and remained placed

outside her custody because of her long-standing problem with substance abuse. She stipulated to

an adjudication that they were dependent children for that reason. 6

{¶18} Mother further does not dispute that, at the time the agency filed its permanent

custody motion and, even by the time of the hearing, she had not complied with the case plan

requirement that she engage in regular drug treatment and demonstrate a period of sustained

sobriety. Mother continued to test positive for cocaine throughout this case, as recently as the

month before the hearing.

{¶19} More than one year into the second dependency case involving her children, Mother

explicitly recognized that her drug use affected her parenting ability and stated that she wanted to

get “clean” to be a better mother. She further testified that she had finally realized that she could

not become sober without help, so she had reengaged in drug treatment shortly before the

permanent custody hearing. Mother had no sober support system or any family that could assist

her with her responsibilities. At the time of the hearing, Mother admitted that she continued to use

cocaine and was still “trying to learn how to not use.”

{¶20} Given the undisputed evidence that Mother had made minimal progress in this

current case toward remedying her long-standing addiction to cocaine, she has failed to

demonstrate any error in the trial court’s first-prong finding under R.C. 2151.414(B)(1)(a) and

R.C. 2151.414(E)(1). Mother’s first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO CONSIDER R.C. 2151.414(D)(1)(e) BECAUSE 2151.414(D)(1) REQUIRES ITS CONSIDERATION AND [AT] LEAST TWO OF THE FACTORS REFERENCED THEREIN ARE RELEVANT. 7

ASSIGNMENT OF ERROR III

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT IT WAS IN THE BEST INTEREST OF THE CHILDREN TO GRANT PERMANENT CUSTODY TO [CSB] BECAUSE THAT DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

{¶21} This Court will address Mother’s second and third assignments of error together

because they both challenge the trial court’s determination that permanent custody was in the best

interest of the children. At the permanent custody hearing and again on appeal, Mother has

attempted to demonstrate that, because she is otherwise able to provide her children with food,

clothing, housing, and other necessities, her drug use has no detrimental impact on her children.

Mother relies on a line of cases from this Court, however, that do not involve analysis of the best

interest of children but instead pertain to dependency adjudications of children. See, e.g., In re

O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632; In re R.S., 9th Dist. Summit No. 21177,

2003-Ohio-1594.

{¶22} Whether Mother’s ongoing cocaine use negatively affected the children, and

warranted the state’s involvement in this case, is an issue that was already determined when the

children were adjudicated dependent during June 2021. See R.C. 2151.04(C). The trial court’s

adjudication of the children as dependent “implicitly involve[d] a determination of the

unsuitability” of Mother. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 23. Moreover, the

order adjudicating R.G. and T.M. dependent children and placing them in the temporary custody

of CSB was a final, appealable order at that time and cannot be challenged in this appeal. See In

re Murray, 52 Ohio St.3d 155 (1990), syllabus; In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810,

¶ 18. 8

{¶23} This Court will instead focus its best interest review on the factors that the court

was explicitly required to consider under R.C. 2151.414(D)(1). In determining the best interest of

the children R.C. 2151.414(D)(1) required the trial court to consider “all relevant factors,

including, but not limited to, the following:”

(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;

(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;

(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 * * * ;

(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

As required by R.C. 2151.414(D)(1), this Court will examine each of the “relevant” factors.

{¶24} Although Mother had a brief period of home visits with the children during this

case, her interaction with the children was limited primarily to weekly two-hour visits with them

that were supervised by CSB because Mother continued to test positive for cocaine. Mother

interacted well with the children in a supervised setting and supervisors observed a loving bond

between Mother and the children. The evidence was undisputed, however, that Mother continued

to regularly use cocaine. Mother expressed an understanding that she must stop using to regain

custody of the children and that she needed help to control her drug use. After having court-

ordered case plan services available to her for more than one year, however, she had just recently

reengaged drug treatment. Mother was not prepared to have the children transitioned back into

her home. 9

{¶25} One month before the hearing, the trial court appointed independent counsel to

represent the children because they did not agree with the recommendation of the guardian ad litem

that they should not be returned to Mother’s home. Both children loved Mother and wanted to

return to her custody, but they could not return to a home in which Mother continued to use

cocaine.

{¶26} The guardian ad litem, who had also been the guardian ad litem in the prior case

involving these children, recommended that the children be placed in the permanent custody of

CSB. He testified that he truly wanted Mother to achieve and maintain sobriety in this case, as she

had in the prior case. The guardian ad litem had encouraged Mother to work toward again

achieving sobriety but, based on his ongoing interactions with her, he did not believe that she was

prepared to stop using cocaine at that time.

{¶27} The custodial history of the children included two separate periods, in the prior case

and again in this case, during which the children were removed from Mother’s custody because of

her drug use. In each case, the children lived outside Mother’s custody for more than one year.

Although Mother asserts that this factor weighs in her favor because this case had not been pending

for one year when the agency moved for permanent custody, and because she proved in the prior

case that she could achieve sobriety and regain custody of her children, she did not demonstrate

similar success in this case.

{¶28} By the time of the permanent custody hearing, this case had been pending for well

over a year and Mother had made no progress toward reunification. During the past several years,

the children had spent more than two years living outside Mother’s custody and nearly four years

moving in and out of temporary placements. R.G., who was not yet six years old at the time of the

hearing, had spent most of his young life moving in and out of temporary placements. 10

{¶29} The children needed stability in their lives and Mother could not provide them with

a legally secure permanent placement because of her ongoing cocaine use. CSB had been unable

to find any suitable relatives who were willing and able to provide the children with a safe and

secure permanent home.

{¶30} Finally, under R.C. 2151.414(D)(1)(e), the trial court was required to consider

whether any of the factors set forth in R.C. 2151.414(E)(7) through (11) applied to the facts of this

case. The trial court implicitly determined that none of those factors were relevant and this Court

agrees.

{¶31} Mother, however, asserts that the trial court should have considered the factors set

forth in R.C. 2151.414(E)(8) and (9), which provide:

(8) The parent has repeatedly withheld medical treatment or food from the child when the parent has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means through prayer alone in accordance with the tenets of a recognized religious body.

(9) The parent has placed the child at substantial risk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more times or refused to participate in further treatment two or more times after a case plan issued pursuant to section 2151.412 of the Revised Code requiring treatment of the parent was journalized as part of a dispositional order issued with respect to the child or an order was issued by any other court requiring treatment of the parent.

{¶32} There was no evidence presented in this case that Mother had withheld medical

treatment or food from the children, or that she had placed them at substantial risk of harm because

of her drug use or rejected drug treatment two or more times. These factors are not relevant to this

case, so the plain language of R.C. 2151.414(D)(1) did not require the trial court to consider them.

{¶33} In fact, Mother essentially concedes that these factors are not relevant to the facts

of this case because she argues that she did not commit any of the acts set forth in these provisions.

She instead suggests that these factors “tilt” in her favor because her drug use was not so bad that 11

she had neglected her children in the manner set forth in these provisions. Mother’s argument

does not comport with the plain meaning of the term “relevant” in R.C. 2151.414(D)(1), however.

The factors were not relevant, so there was no reason for the trial court to consider them.

{¶34} Given the substantial evidence before the trial court that Mother could not provide

her children with a suitable home, Mother has failed to demonstrate that the trial court lost its way

in determining that permanent custody was in the best interest of R.G. and T.M. See Eastley, 2012-

Ohio-2179, at ¶ 20. Mother’s second and third assignments of error are overruled.

III.

{¶35} Mother’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas, Juvenile Division, is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant. 12

JILL FLAGG LANZINGER FOR THE COURT

SUTTON, P. J. STEVENSON, J. CONCUR.

APPEARANCES:

JAYSEN W. MERCER, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

BENJAMIN AYERS, Attorney at Law, for Appellee.

DAVID M. LOWRY, Attorney at Law, for Appellee.

NEIL P. AGARWAL, Guardian ad Litem.