In re R.S.

2015 Ohio 271

• Court: Ohio Court of Appeals
• Decided: January 15, 2015
• Docket: 2014 AP 09 0037
• Status: Published

Opinion

[Cite as In re R.S., 2015-Ohio-271.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

: JUDGES: : : Hon. John W. Wise, P.J. : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. IN RE R.S. : : Case No. 2014 AP 09 0037 : : : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas County Court of Common Pleas, Juvenile Division, Case No. 13JN00278

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: January 15, 2015

APPEARANCES:

For Appellant-Mother: For Appellee-TCDJFS:

JOHN BRECHBILL DAVID HAVERFIELD Assistant Public Defender 389 – 16th St. SW 153 N. Broadway New Philadelphia, OH 44663 New Philadelphia, OH 44663 Tuscarawas County, Case No. 2014 AP 09 0037 2

Delaney, J.

{¶1} Appellant-Mother appeals the August 28, 2014 judgment entry of the

Tuscarawas County Court of Common Pleas, Juvenile Division, which granted

permanent custody of her child to Appellee-Tuscarawas County Department of Job and

Family Services.

FACTS AND PROCEDURAL HISTORY

{¶2} Appellant-Mother is the mother of R.S. The father of R.S. is unknown.

{¶3} R.S. was born on June 14, 2013. He was born three months premature

and weighed three pounds at birth. R.S. and Mother came to the attention of Appellee-

Tuscarawas County Department of Job and Family Services (“TCDJFS”) when R.S.’s

doctor reported to TCDJFS that R.S. was failing to thrive. The doctor was concerned

that R.S. was not gaining weight and Mother would not cooperate with the doctor to

treat R.S.

{¶4} On July 31, 2013, TCDJFS filed an ex parte order for temporary custody

of R.S. On August 1, 2013, TCDJFS filed a complaint alleging R.S. was a neglected and

dependent child. A shelter care hearing was held where R.S. was placed in the

temporary custody of TCDJFS. An adjudication hearing was held on August 29, 2013.

The complaint was amended to allege only dependency. The parties stipulated R.S.

was dependent and he was placed in the temporary custody of TCDJFS. A case plan

was adopted for Mother. The case plan required Mother to obtain an income to be able

to care for R.S.’s needs, obtain housing, obtain a psychological evaluation, take

parenting classes, and to determine if she was eligible for developmental disability

services. Tuscarawas County, Case No. 2014 AP 09 0037 3

{¶5} R.S. was placed with a foster family. In September 2013, R.S. was

diagnosed with Pearson Syndrome. Pearson Syndrome is a rare mitochondrial disease.

Children with Pearson Syndrome present with sideroblastic anemia and failure to thrive

due to the failure of the pancreas to digest food. Children with the disease often pass

away in the first two years of their life. Children with Pearson Syndrome take multiple

medications. They require frequent blood transfusions because of the anemia. A child

with Pearson Syndrome is prone to infections and the child can die if they do not

receive treatment for even mild illnesses. If the child survives, the child will develop

another syndrome called Kaern-Sayer’s Syndrome. The child will have muscle

weakness, cardiac induction blocks requiring a pacemaker, diabetes, hearing loss, night

blindness, digestive problems, and possibly dementia.

{¶6} Mother lived with a female roommate. TCDJFS placed the roommate on a

case plan as well. The roommate provided Mother with financial and emotional support.

{¶7} TCDJFS filed a motion for permanent custody on February 7, 2014.

Mother filed a motion to extend temporary custody on February 14, 2014. The hearing

on the motion was held on May 8, 2014.

{¶8} R.S. was under the care of Dr. Cohen, a pediatric neurologist with Akron

Children’s Hospital. Dr. Cohen testified at the hearing as to the nature of R.S.’s

condition.

{¶9} Jaime Grunder, ongoing case manager with TCDJFS testified at the

hearing. Ms. Grunder stated that Mother, for the most part, met her case plan

objectives. Mother did not have an income. She was unemployed and she applied for

Social Security disability benefits but was denied. Mother relied on food stamps and her Tuscarawas County, Case No. 2014 AP 09 0037 4

roommate for financial support. Without her roommate, Mother would have no source of

income. Mother checked with developmental disability services and was told she did not

qualify. Mother completed parenting classes and took individual parenting classes with

Wendy Smitley.

{¶10} Ms. Grunder testified that while Mother complied with her case plan

objectives, the concerns that precipitated the complaint for dependency were not

remedied in regards for caring for R.S., a child with very special health needs. Ms.

Grunder stated that there were concerns for Mother’s personal hygiene. Ms. Grunder

witnessed Mother fall asleep during her visitation with R.S. Ms. Grunder did not believe

Mother could adapt and cope with the level of care that R.S. needed.

{¶11} Wendy Smitley, social service aide with TCDJFS, testified at the hearing.

Ms. Smitley has been providing supervised visitation and individual parent education for

Mother since August 2013. Mother visited with R.S. from 9:30 a.m. to 11:30 a.m. on

Thursdays. Ms. Smitley testified Mother struggled to adapt to R.S.’s changing needs,

especially feeding and sleeping. She would provide Mother with instruction, which

Mother would not consistently retain and utilize at future visits. Mother’s roommate

would attend visitations with Mother. The roommate would help Mother care for R.S.,

but the roommate exhibited frustration when caring for R.S. if he was fussy.

{¶12} The foster parent of R.S. testified at the hearing as to the level of care

R.S. required to maintain his health. R.S. had a regimen of medication that R.S. must

take at specific times during the day. The foster parents avoided large, crowded areas

because R.S.’s white blood count was very low. The home was kept clean to avoid

bringing germs into the home environment. R.S. saw a hematologist at Akron Children’s Tuscarawas County, Case No. 2014 AP 09 0037 5

Hospital every two or three weeks to monitor his blood counts. The foster parents

watched R.S.’s behavior and demeanor closely to determine if R.S. was getting sick or if

his red blood cells were low. The foster parents were bonded with the child and

understood the long-term prognosis for R.S. The foster parents wanted to adopt R.S. If

they did adopt R.S., they planned to allow Mother to have contact with R.S.

{¶13} Mother testified she was able to care for R.S. and his special needs. She

missed R.S. and wanted him to come home with her. She thought the foster parents

were taking very good care of R.S.

{¶14} The guardian ad litem recommended that considering the health care

needs of R.S., TCDJFS should be granted permanent custody of R.S.

{¶15} On August 28, 2014, the trial court issued its judgment entry granting

permanent custody of R.S. to TCDJFS. The trial court found the child could not or

should not be placed with Mother within a reasonable time. It determined the evidence

demonstrated TCDJFS made reasonable efforts to remedy the problem that caused the

removal of the child, but the conditions that caused the removal were not remedied. The

trial court found it was in the best interest of the child to be placed in the permanent

custody of TCDJFS.

{¶16} It is from this decision Mother now appeals.

ASSIGNMENT OF ERROR

{¶17} Mother raises one Assignment of Error:

{¶18} "THE TRIAL COURT ERRED IN AWARDING PERMANENT CUSTODY

TO JOB AND FAMILY SERVICES AS SAID DECISION WAS NOT SUPPORTED BY Tuscarawas County, Case No. 2014 AP 09 0037 6

CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

{¶19} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

ANALYSIS

{¶20} “[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).

{¶21} 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 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).

{¶22} 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' Tuscarawas County, Case No. 2014 AP 09 0037 7

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

{¶23} 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.

{¶24} 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 on or after

March 18, 1999.

{¶25} 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 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. Tuscarawas County, Case No. 2014 AP 09 0037 8

{¶26} In the present case, the trial court found that despite the efforts of

TCDJFS, the child could not be placed with Mother within a reasonable period of time

and should not be placed with Mother pursuant to R.C. 2151.414(E). R.C. 2151.414(E)

sets forth the factors a trial court must consider in determining whether a child could not

or should not be placed with a parent within a reasonable time. If the court finds, by

clear and convincing evidence, the existence of any one of the following factors, “the

court shall enter a finding that the child cannot be placed with [the] parent within a

reasonable time or should not be placed with either parent”:

(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 parent to remedy the problem that initially caused the

child to be placed outside the home, the parents have failed continuously

and repeatedly to substantially remedy the conditions that caused the

child to be placed outside the child's home. In determining whether the

parents have substantially remedied the 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.

***

(16) Any other factors the court considers relevant.

{¶27} A trial court may base its decision that a child could not or should not be

placed with a parent within a reasonable time upon the existence of any one of the R.C. Tuscarawas County, Case No. 2014 AP 09 0037 9

2151.414(E) factors. The existence of one factor alone will support a finding that the

child cannot be placed with the parent within a reasonable time. In re Calhoun, supra, at

¶ 38.

{¶28} Mother argues the evidence demonstrated she was in substantial

compliance with her case plan requirements. Based on her substantial compliance, she

moved the trial court to extend temporary custody for six months to allow her a

reasonable amount of time to demonstrate her ongoing progress and compliance with

case plan services. Mother states that TCDJFS moved for permanent custody only after

six months; the limited period of time did not allow Mother to fully demonstrate her

compliance and ability to care for R.S.

{¶29} In the trial court’s judgment entry granting permanent custody to TCDJFS,

the trial court found that while a six-month extension was legally possible, an extension

would be of no benefit to R.S. Under this specific factual scenario, we agree with the

trial court’s conclusion. R.S. has a potentially fatal genetic disorder. His survival beyond

the age of two-years-old depends not only on his doctors, but also on his caretakers. Dr.

Cohen, R.S.’s doctor, testified that at the time of the hearing, R.S. was doing relatively

well. In order for R.S. to continue to do well, Dr. Cohen stated his health depended on

the vigilant management of the various facets of the disease:

* * * [W]hat we, what we’ve observed in cases of, and it’s vigilant

management on, on, from the medical team and the caretaker team,

because if we micro-, if the physicians micromanage the care, um, there’s

clearly, children with mitochondrial disease clearly do better than if there’s

not micro-management. But it’s the parents who have to deliver that Tuscarawas County, Case No. 2014 AP 09 0037 10

management, and if that isn’t delivered properly, you don’t, you know, you

might as well not even have a medical team.

(Hrg., p. 15).

{¶30} Jaime Grunder and Wendy Smitley testified that Mother tried her best to

care for R.S. during her visitations, but she would not consistently utilize the instructions

provided to Mother for R.S.’s daily care, such as feeding and changing. R.S. required

multiple medications to be taken throughout the day. He saw a physician at Akron

Children’s Hospital every two to three weeks to check his blood count. He required

blood transfusions. If R.S. survived beyond two-years-old, his health care will require

more management as he will develop diabetes, require a pacemaker, suffer from

digestive problems, and possibly dementia. Grunder and Smitley also testified that

Mother required instruction as to hygiene. If not properly treated, the common cold

could be a fatal event for R.S. His foster parents did not take R.S. into crowds and kept

the home clean to minimize R.S.’s exposure to germs.

{¶31} Mother argues the trial court relied on improper evidence to determine that

the child could not and should not be placed with Mother within a reasonable time. For

example, in the judgment entry, the trial court referred to Mother’s psychological

assessment where she was diagnosed with Intellectual Disability. This evidence was

not presented at trial, but it was contained within the Guardian ad Litem’s report. Even if

this court discounts this information, there is still competent, credible evidence to

support the trial court’s determination that R.S. could not and should not be placed with

Mother within a reasonable time. All children require care to maintain their health and

happiness; however, the care R.S. requires to ensure his survival beyond two-years-old Tuscarawas County, Case No. 2014 AP 09 0037 11

goes far beyond the care needed by a healthy child. The evidence demonstrates that

despite the efforts of TCDJFS, R.S. could not and should not be placed with Mother

within a reasonable time.

{¶32} Mother does not challenge in her appellate brief the trial court's finding

that it was in the best interest of the child to be placed in the permanent custody of

TCDJFS. We find the trial court made the requisite considerations of the best interest

factors under R.C. 2151.414(D). There is no doubt Mother loves R.S. The foster parents

also love R.S. and understand his health care needs and his long-term prognosis. Dr.

Cohen testified that R.S. was doing relatively well at the time of the hearing, which was

while R.S. was being cared for by the foster parents. The foster parent testified that if

they were to adopt R.S., they would allow Mother to have contact with R.S.

{¶33} For these reasons, we find that the trial court's determination that the child

could not or should not be placed with Mother within a reasonable time was not against

the manifest weight of the evidence. We further find that the trial court's decision that

permanent custody to TCDJFS was in the child’s best interest was not against the

manifest weight or sufficiency of the evidence.

{¶34} Accordingly, Mother's sole Assignment of Error is overruled. Tuscarawas County, Case No. 2014 AP 09 0037 12

CONCLUSION

{¶35} The judgment of the Tuscarawas County Court of Common Pleas,

Juvenile Division, is affirmed.

By: Delaney, J.,

Wise, P.J. and.

Baldwin, J., concur.