In re S.M.

2024 Ohio 517

• Court: Ohio Court of Appeals
• Decided: February 12, 2024
• Docket: 9-23-30
• Status: Published

Opinion

[Cite as In re S.M., 2024-Ohio-517.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

IN RE: CASE NO. 9-23-30

S.M.

[LINDSEY M - APPELLANT] OPINION [SAMUEL M. - APPELLANT]

Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2020 AB 0026

Judgment Affirmed

Date of Decision: February 12, 2024

APPEARANCES:

W. Joseph Edwards for Appellant Lindsey M.

Alison Boggs for Appellant Samuel M.

Charles R. Hall Jr. for Appellee Case No. 9-23-30

WALDICK, J.

{¶1} Mother-appellant, Lindsey M. (“Lindsey”), and father-appellant, Samuel M.

(“Samuel”) appeal the May 1, 2023 judgment of the Marion County Common Pleas Court,

Family Division, granting permanent custody of their child, S.M., to the appellee, Marion

County Children Services (“MCCS” or “the agency”). On appeal, both Lindsey and

Samuel argue that the trial court’s decision granting permanent custody to the agency was

against the manifest weight of the evidence, and that the trial court erred in failing to make

an adequate record of the permanent custody hearing. For the reasons that follow, we

affirm the judgment of the trial court.

Background

{¶2} In late 2019, S.M., a male, was born to Lindsey and Samuel, who are unwed.

On January 30, 2020, MCCS filed a motion in the Marion County Court of Common Pleas,

Family Division, seeking an ex parte emergency order for temporary custody of S.M,

which the trial court granted on January 31, 2020.

{¶3} On February 4, 2020, the agency filed a complaint alleging that S.M. was an

abused, neglected, and dependent child. The abuse, dependency, and neglect allegations

in the complaint were based on S.M.’s mother, Lindsey, having tested positive for THC at

the time of S.M.’s birth, and S.M.’s meconium also testing positive for THC. The

complaint asserted that S.M. was born with several serious medical issues for which he

was undergoing testing and treatment. The complaint further alleged that Lindsey had fled

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from Massachusetts where she had previously lost custody of four other children, and that

Lindsey had reported that S.M.’s father, Samuel, struggled with heavy drug use.

{¶4} On March 6, 2020, the trial court ordered that a case plan submitted by MCCS

on February 28, 2020 be adopted and take effect.

{¶5} On July 30, 2020, the agency filed a second complaint alleging that S.M. was

an abused, neglected, and dependent child, on the same grounds as those alleged in the

initial complaint.

{¶6} On or about August 28, 2020, an adjudicatory hearing was held. By judgment

entry filed on September 29, 2020, the trial court found S.M. to be an abused and dependent

child.

{¶7} On September 25, 2020, a dispositional hearing was held. By judgment entry

filed on October 8, 2020, MCCS was ordered to be maintained as the temporary custodian

of S.M., and it was ordered that S.M. continue in his foster care placement.

{¶8} On June 8, 2022, the agency filed a motion for permanent custody of S.M. A

permanent custody hearing was then held on three different dates between April 13, 2023

and April 27, 2023.

{¶9} On May 1, 2023, the trial court filed a lengthy judgment entry in which the

court reviewed the record of the case and detailed the evidence presented at the multi-day

permanent custody hearing. After conducting that review, the trial court found that S.M.

had been in the agency’s custody for twelve or more months of a consecutive twenty-two-

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month period, that the agency had made reasonable efforts to reunify S.M. with his parents,

and that it was in the best interest of S.M. that MCCS be granted permanent custody. For

those reasons, the trial court granted the agency’s motion for permanent custody and

terminated the parental rights of Lindsey and Samuel as to S.M.

{¶10} Both Lindsey and Samuel have appealed the trial court’s decision. A separate

merit brief has been filed by each parent, although both of them raise the same two

assignments of error, as set forth below.

Lindsey’s First Assignment of Error

The trial court abused its discretion in granting permanent custody to Marion County Children’s Services, and the decision was against the manifest weight of the evidence.

Lindsey’s Second Assignment of Error

The trial court failed to make an adequate record pursuant to Appellate Rule 9(A)(2) resulting in a violation of Ms. [M]’s due process rights.

Samuel’s First Assignment of Error

The trial court’s decision granting permanent custody was against the manifest weight of the evidence and amounted to an abuse of discretion.

Samuel’s Second Assignment of Error

The trial court failed to make an adequate record pursuant to Appellate Rule 9(A)(2) resulting in a violation of Mr. [M]’s due process.

{¶11} To avoid unnecessary repetition in our analysis of these claims, we shall

jointly address the parallel assignments of error.

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First Assignments of Error {¶12} In the first assignments of error, Lindsey and Samuel argue that the trial

court’s decision terminating their parental rights and granting permanent custody to the

agency was against the weight of the evidence.

{¶13} “[T]he right to raise one’s children 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, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). “Parents have a ‘fundamental

liberty interest’ in the care, custody, and management of their

children.” Id. quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d

599 (1982). “The rights and interests of a natural parent are not, however, absolute: where

a court finds that permanent custody is appropriate under the circumstances of a particular

case and all due process safeguards have been followed, whatever residual rights a parent

may have are properly divested.” In re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53,

and 5-02-54, 2003-Ohio-1269, ¶ 6.

{¶14} “R.C. 2151.414 outlines the procedures that protect the interests of parents

and children in a permanent custody proceeding.” In re N.R.S., 3d Dist. Crawford Nos. 3-

17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re B.C., 141 Ohio St.3d 55,

2014-Ohio-4558, ¶ 26. “When considering a motion for permanent custody of a child, the

trial court must comply with the statutory requirements set forth in R.C. 2151.414.” In re

A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13. Specifically, “R.C.

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2151.414(B)(1) establishes a two-part test for courts to apply when determining whether

to grant a motion for permanent custody: (1) the trial court must find that one of the

circumstances in R.C. 2151.414(B)(1)(a)-(e) applies, and (2) the trial court must find

that permanent custody is in the best interest of the child.” In re Y.W., 3d Dist. Allen No.

1-16-60, 2017-Ohio-4218, ¶ 10.

{¶15} “The first prong of that test requires a finding by clear and convincing

evidence that one of the statutorily-prescribed situations of R.C. 2151.414(B)(1) is

satisfied.” In re N.F., 3d Dist. Marion No. 9-22-40, 2023-Ohio-566, ¶ 19. In that respect,

R.C. 2151.414 provides:

(B)(1) 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.

(c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody.

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(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.

For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

{¶16} Then, in determining the best interest of the child, R.C. 2151.414(D) directs

the trial court to consider all relevant factors, including but not limited to: (1) the interaction

and interrelationship of the child with the child’s parents, relatives, foster parents and any

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.

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{¶17} Pursuant to R.C. 2151.414(B)(1), an award of permanent custody must be

based on clear and convincing evidence. In re H.M. 3d Dist. Logan No. 8-18-46, 2019-

Ohio-3721, ¶ 44. “Clear and convincing evidence is that measure or degree of proof which

is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce 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), paragraph three

of the syllabus. “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.

{¶18} In reviewing whether a trial court’s permanent custody decision is against the

manifest weight of the evidence, an appellate court “‘weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such

a manifest miscarriage of justice that the [judgment] must be reversed and a new trial

ordered.’” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, at ¶ 20,

quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist. 2001).

Furthermore, “‘[w]eight of the evidence concerns “the inclination of the greater amount of

credible evidence, offered in a trial, to support one side of the issue rather than the other.

It indicates clearly to the [trier-of-fact] that the party having the burden of proof will be

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entitled to their verdict, if, on weighing the evidence in their minds, they shall find the

greater amount of credible evidence sustains the issue which is to be established before

them. Weight is not a question of mathematics, but depends on its effect in inducing

belief.”’” (Emphasis sic.) Eastley at ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed. 1990).

{¶19} Finally, 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 Co. Inc. 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.” (Emphasis

sic.) Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). “‘Thus, if the

children services agency presented competent and credible evidence upon which the trier

of fact reasonably could have formed a firm belief that permanent custody is warranted,

then the court’s decision is not against the manifest weight of the evidence.’” In re A.B.,

3d Dist. Marion No. 9-22-12, 2022-Ohio-4234, ¶ 12, quoting In re R.M., 4th Dist. Athens

Nos. 12CA43 and 12CA44, 2013-Ohio-3588, ¶ 55.

{¶20} In the instant case, with regard to the first prong of the two-prong test, the

trial court found by clear and convincing evidence that S.M. had been in the agency’s

temporary custody for twelve or more months of a consecutive twenty-two-month period.

Under the plain language of R.C. 2151.414(B)(1)(d), when a child has been in an agency’s

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temporary custody for twelve or more months of a consecutive twenty-two-month period,

a trial court need not find that the child cannot be placed with either parent within a

reasonable time or should not be placed with the parents. In re I.G., 3d Dist. Marion Nos.

9-13–43, 9–13–44, and 9-13-45, 2014-Ohio-1136, ¶ 30, citing R.C. 2151.414(B)(1)(d); In

re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 14.

{¶21} On appeal, Lindsey and Samuel do not dispute that MCCS satisfied the R.C.

2151.414(B)(1)(d) “12 in 22-standard”, a finding which is also supported by the record.

Therefore, we move on to consider whether the finding of the trial court as to the best

interest of the child is also supported by clear and convincing evidence.

Evidence Presented at the Permanent Custody Hearing

{¶22} At the permanent custody hearing, MCCS called seven witnesses in support

of the agency’s case.

{¶23} Dr. Katelyn Krivchenia, a pediatric pulmonologist employed at Nationwide

Children’s Hospital in Columbus, Ohio and an expert in childhood lung disease, testified

that S.M. had been under her care for two and a half years. S.M. is a “medically fragile”

child, born with an interstitial lung disease that was subsequently diagnosed as Chitayat

Syndrome, a very rare syndrome caused by a mutation in a gene. At this stage of his life,

S.M. requires supplemental oxygen in order to breathe and is also dependent on a feeding

tube. Dr. Krivchenia testified that some persons born with the same disorder will improve

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over time and require less or no supplemental oxygen, while others can require more and

more supplemental oxygen in order to breathe.

{¶24} Dr. Krivchenia testified that S.M. spent the first 54 days of his life in the

hospital, then went home with his foster parents, but had been readmitted to the hospital

twice since then to address his medical needs. As S.M. is now an active toddler who plays

and runs around the house, his lungs require more oxygen than at birth, as such activities

make breathing more challenging for him. Dr. Krivchenia testified that, without question,

S.M. needs supplemental oxygen at all times at this point in his life. When S.M. is without

supplemental oxygen, his oxygen levels desaturate below normal for his age. S.M.’s

oxygen levels require constant monitoring, and he has a monitor with him at all times.

{¶25} Dr. Krivchenia explained that the monitor is important for S.M.’s well-being

as he can very easily fall below a normal oxygen level, which can impact brain

development, heart health, and other bodily functions. In spite of that, Dr. Krivchenia was

hopeful for S.M.’s future, as he currently gets the oxygen-treatment he needs to fully

participate in the various therapies that he requires as he grows. S.M. currently also

receives care from genetic experts and cardiologists, and undergoes speech therapy and

feeding therapy, among others. Because of S.M.’s lung disease, viral illnesses pose a threat

to his well-being, as even catching a cold makes it all the harder for his body to move

oxygen from his lungs to his bloodstream.

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{¶26} Dr. Krivchenia testified that she understands parents worrying about a child

like S.M. being dependent on supplemental oxygen and wanting to wean the child from the

supplemental oxygen, but that is not an option at this point for S.M. Without his

supplemental oxygen, S.M. is at risk for heart failure, stroke, brain damage, kidney

dysfunction, and liver dysfunction. Dr. Krivchenia testified that any future attempt to wean

S.M. off the oxygen, when appropriate, must be done in a careful and informed manner,

with constant monitoring of his saturation levels.

{¶27} Dr. Krivchenia testified that the tubes used to deliver oxygen to S.M. can be

changed out from one oxygen tank to another in two to five seconds. The doctor testified

that taking 35 seconds to switch the tubes to a new oxygen tank would be a problem, as it

would overly prolong the time necessary for S.M.’s body to receive the oxygen. Dr.

Krivchenia confirmed that S.M.’s mother, Lindsey, had undergone training with the doctor

in late 2021 relating to S.M.’s use of supplemental oxygen and his monitor.

{¶28} On cross examination by Lindsey’s attorney, Dr. Krivchenia acknowledged

that she had previously written a letter requesting that S.M. be limited in his exposure to

public places, in order to keep him safe, due to the threat level of respiratory viruses at that

time. The doctor also testified that, as to the issue of environmental exposure, a big threat

to S.M. is exposure to smoke from cigarettes or vaping devices. Even third-hand smoke,

which the doctor defined as the smell of smoke lingering on clothes or in the air, could

cause inflammation in S.M.’s lungs. Accordingly, the doctor explained that S.M. should

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not be exposed to any smoke at all, although third-hand smoke would be less detrimental

than second-hand smoke. Dr. Krivchenia confirmed that Lindsey had gone through training

at the hospital in both the use of S.M.’s oxygen tank and monitor, and in caring for his

feeding tube. At the time of the hearing, the doctor’s goal for S.M.’s oxygen level was 94

or higher, which is why his monitor was set to begin beeping if his level falls to 90 or

below. Dr. Krivchenia testified that if S.M.’s oxygen level fell into the 70s or lower, bodily

harm could result. When S.M.’s level begins to fall, he must be made to stop whatever

activity he is doing and take a rest break until his saturation and oxygen levels can be

reestablished at safe numbers.

{¶29} During cross examination by Samuel’s attorney, Dr. Krivchenia testified that

she had not personally been involved in any training with Samuel relating to S.M.’s care,

and that she had never met Samuel.

{¶30} On cross examination by the guardian ad litem, Dr. Krivchenia testified that

since taking over S.M.’s care in November of 2020, she and her office had received four

phone calls from Lindsey. The doctor also testified that anything causing S.M. to become

upset, and particularly screaming or crying, can cause drops in his oxygen level because

he does not have the same reserves as a child with normal lungs.

{¶31} On re-direct examination, Dr. Krivchenia confirmed that Lindsey had been

banned from the hospital at one point due to repeatedly using bad language and yelling at

the staff. On re-cross examination by Lindsey’s counsel, the doctor testified that three of

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the four phone calls received from Lindsey were in October of 2021, January of 2022, and

August of 2022, and that Lindsey had not made contact with the doctor for the eight months

immediately preceding the hearing. On re-cross examination by the guardian ad litem, Dr.

Krivchenia testified that her biggest concern with Lindsey was that even after Lindsey had

undergone the training provided by the hospital, the doctor still received reports that

Lindsey seemed unable to troubleshoot S.M.’s oxygen desaturations during visitation and

even ignored them at times. Upon questioning by the trial court, Dr. Krivchenia confirmed

that when S.M.’s oxygen level drops, the risk of damage to his lungs, brain, and other

organs would not be apparent by just looking at him.

{¶32} Antigoney Lyons, a visitation supervisor with MCCS, also testified. Lyons

supervised parental visitation with S.M. for the three years of his life, following his

discharge from the hospital after birth. Lyons testified that S.M. is pretty happy, very

sweet, and very active, and that he likes to explore. Because S.M. is deemed medically

fragile, the agency makes a point to keep him as safe as possible during in-person visitation.

The safety measures include deep cleaning the visitation room before visits with S.M.,

making sure that S.M. is the only child at the visitation center during his visitation times,

and requiring his parents to change from street clothes into scrubs and wear a mask and

gloves. Agency employees and S.M.’s foster mother also wear masks during the visits.

{¶33} Lyons explained that S.M.’s parents have separate visitation times with their

son. Lindsey’s visits are in person, while Samuel participates primarily in virtual audio-

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video visits with S.M. Lyons testified that S.M. must have supplemental oxygen at all

times, and has a monitor that tracks his oxygen levels and heart rate. S.M.’s required

minimum oxygen level for visits with his parents is 90, and the monitor displays a number

that indicates S.M.’s oxygen level at any given moment. During S.M.’s visits at the center,

Lyons observed that S.M.’s oxygen level would drop when he was active and busy, and

also when he was exposed to certain scents. The monitor begins making a noise if the

child’s oxygen level drops below the set minimum limit. If S.M.’s oxygen level begins to

drop, then the oxygen flow from the tank must be turned up. During S.M.’s history of

visitation with his mother, Lyons had observed the oxygen tank being changed more than

one hundred times. Changing the oxygen tank involves leaving S.M. hooked up to the tank

that is getting low, getting the new tank turned on, and then unplugging the tube from the

old tank and plugging it into the new tank. Also, his monitor would need to be plugged in

upon arrival at the center, because it only has a certain battery life and must be recharged

for the nearly one-hour drive home to where his foster parents live.

{¶34} At the hearing, Lyons identified her notes and records documenting the three-

year history of parental visitation with S.M., and then testified as to several incidents of

note from that history.

{¶35} With regard to S.M.’s visitation with his mother, Lyons noted that on October

5, 2021, Lindsey tried to entertain S.M. with her phone and he was not interested. She

changed his diaper on that date, but Lindsey did not want to clean S.M. during that process

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and asked for help from the foster mother. Other than that one time, Lindsey did not

perform any diaper changes during visitation and it had to be done by the foster mother.

{¶36} On November 16, 2021, S.M.’s oxygen level began to drop during a visit, and

Lindsey put him on her lap for a break. Linsdey then unplugged his oxygen cable and the

foster mother had to go into the room to make sure the oxygen was back on. Later that

same visit, S.M.’s monitor alarmed three separate times before Lindsey looked at it. When

the oxygen tank needed switched out, the foster mother had to do it.

{¶37} On January 11, 2022, Lindsey was playing with S.M. when his monitor

alarmed. His oxygen level dropped to the low 80s and the foster mother had to go into the

room to turn up the oxygen flow. When the monitor alarmed again, the foster mother

returned to the room and cracked the window for fresh air, which resulted in Lindsey

“going off.” Later that same visit, Lindsey unplugged S.M.’s monitor and never plugged

it back in. It also took Lindsey over 35 seconds to change the oxygen tank. When Lindsey

turned the oxygen on, it was not flowing correctly. The monitor again alarmed during that

visit, and Lindsey did nothing for five minutes.

{¶38} On January 18, 2022, the monitor alarmed and it was discovered that Lindsey

had failed to plug it into the wall outlet to recharge. Lindsey then started to change the

oxygen tank and shut off S.M.’s oxygen flow while doing so. She then again unplugged

the monitor and did not plug it back in.

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{¶39} On February 1, 2022, the monitor alarmed more than once during the visit

and Lindsey failed to check it. Lindsey again failed to plug the monitor into an electrical

outlet to charge. During that visit, Lindsey tried to change the oxygen tank and turned off

S.M.’s oxygen for more than 30 seconds, at which point the foster mother entered the room

to help. Lindsey became enraged, yelled and screamed at the staff, then threw her scrubs,

mask, and gloves on the floor and left the building.

{¶40} On February 15, 2022, the monitor alarmed during a visit, and would not stop

beeping. Lindsey attempted to change the oxygen tank, but turned off the tank that S.M.

was using, and his oxygen level fell to 83 percent. When the foster mother entered the

room to provide assistance, Lindsey began cussing and screaming. S.M.’s heartbeat

ultimately dropped to 14 beats per minute and the foster mother called for an EMS squad.

When the foster mother attempted to leave the visitation room with S.M. to get him help,

Lindsey blocked the doorway. Lindsey was asked to leave the building, which she did,

after calling Lyons a “fucking bitch” and threatening to grab her by the hair.

{¶41} On May 17, 2022, Lindsey arrived at visitation, brought her clothes into the

visitation room with her after changing into scrubs, and the clothes smelled of smoke. The

monitor alarmed, and the foster mother opened the window for fresh air and turned up the

oxygen flow. Agency supervisors asked Lindsey to remove her clothes from the room, and

Lindsey once again began cussing and screaming.

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{¶42} On August 30, 2022, the monitor alarmed during a visit and S.M.’s oxygen

level dropped to 81, which Lindsey blamed on the air in the room. Lindsey ended the visit

early, saying the oxygen tank level was low, which it was not. Lindsey then stated that

“this” is a complete waste of her time.

{¶43} On October 5, 2022, the monitor alarmed and S.M.’s oxygen level dropped

to 88. The foster mother turned up the oxygen flow, and had S.M. sit down for a break.

When the monitor alarmed again, Lindsey had to call the foster mother into the room to fix

one of the wires.

{¶44} On November 1, 2022, a virtual visit was held because S.M. was ill. During

that visit, Lindsey turned the camera volume off.

{¶45} On September 6, 2022, Lindsey got angry when she was asked to wash her

hands prior to entering the room with S.M. Lindsey left the sink running, which soaked

the floor, and she threw paper towels all over the sink and floor, which Lyons had to clean

up.

{¶46} On February 28, 2023, Lindsey brought her new baby to a visit with S.M.

She complained she needed somewhere to put the baby, and so the agency provided a

bouncy seat. Lindsey sat and tended to the baby while S.M.’s monitor alarmed and his

oxygen level dropped to 82.

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{¶47} On March 14, 2023, a virtual visit was held at Lindsey’s request, due to poor

road conditions. During that visit, Lindsey failed to engage with S.M. for the first 12

minutes.

{¶48} On March 21, 2023, the guardian ad litem came to observe a visit. Lindsey

asked that the visitation center staff come in the room to monitor the machine, stating that

the foster mother was lying about S.M.’s oxygen levels dropping.

{¶49} As indicated, Lyons had documented repeated instances when Lindsey had

become irate with staff members during visitation, raising her voice and swearing at others.

Lyons also documented that S.M. would become highly upset as a result, screaming and

crying. Another routine occurrence was that Lindsey would try to amuse her son with her

cell phone, instead of letting him get off her lap and play with toys or otherwise interact

with him. Lyons testified that Lindsey did appear to be bonded with S.M.

{¶50} Regarding S.M.’s visitation with his father, Samuel, Lyons testified about

two in-person visits that Samuel attended with S.M. at the visitation center. On October

21, 2021, Samuel walked in from across the street where he had been smoking a cigarette,

even though the agency had repeatedly requested that he not smoke prior to visits. On that

same date, Samuel refused to wash his hands, and also remained on his phone during the

visit. On October 28, 2021, Samuel was again smoking before an in-person visit and was

reminded to not do so. After the visit started, S.M.’s oxygen level dropped to the low 80s

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and he struggled to recover, so the visit ended early. After that point, Samuel’s visitation

with S.M. took place virtually.

{¶51} On August 18, 2022, a virtual visit was held. Samuel inquired of the foster

mother how S.M. was doing after becoming ill with COVID, and the foster mother

explained that S.M. was doing better. Samuel then began yelling and cussing on the phone.

{¶52} On September 1, 2022, at the start of a virtual visit, Samuel said hello and

then said nothing else. Agency staff prompted Samuel to interact with S.M., and Samuel

then began making racist comments to Lyons, who is biracial. Among other things, Samuel

referred to himself as a “confederate motherfucker”. S.M. was on the phone when those

remarks were made.

{¶53} On March 16, 2022, Samuel was smoking during a virtual visit and did not

initially engage with S.M. at all on the phone. Samuel finally spoke to S.M. to ask how he

was doing, and then stared at S.M. while he played. Samuel then said nothing to S.M. for

two minutes, but Samuel was talking to someone in the car with him. Someone in the car

with Samuel yelled “goddamnit” and Samuel responded with “fuck.”

{¶54} During cross examination by Lindsey’s counsel, Lyons testified that S.M.’s

foster mother was able to change out the oxygen tank in three to five seconds. Lyons

acknowledged that, over the last three years, Lindsey had missed a few visitations but had

been compliant for the most part with the visitation schedule. Lyons repeated, and

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expanded upon, her prior testimony that Lindsey spent much time during visitation trying

to use her cell phone to entertain S.M.

{¶55} During cross examination by Samuel’s counsel, Lyons testified that the in-

person visits between Samuel and S.M. ended early at the agency’s request, due to Dr.

Krivchenia’s recommendation that visits be stopped if S.M.’s oxygen level does not

recover after a minute’s time. Lyons also testified about one virtual visit where Samuel

kept turning the video off and on. Lyons also explained that Samuel’s visits with S.M.

were switched to virtual visits because Samuel did not have transportation to attend visits

in person.

{¶56} During cross examination by the guardian ad litem, Lyons confirmed that

Lindsey had ultimately been prohibited from changing the oxygen tank during visitation.

Lyons testified that, based on her observations and interactions with Lindsey, it was Lyon’s

opinion that Lindsey was not capable of handling the oxygen tank. Lyons testified that

while there were many times that Lindsey became irate during visits and acted

inappropriately, there were also times when she was sweet and kind. Lyons confirmed that

S.M. was bonded with both parents, but also with his foster parents. Lyons testified that

the visitations appeared to be very hard on S.M., that in 2023 his oxygen level dropped

significantly during every single visit with his mother, and that he would be lethargic and

act completely different than normal during the nearly one-hour car ride back to his foster

-21- Case No. 9-23-30

home, which Lyons provided. Lyons confirmed that during Lindsey’s visitations with

S.M., it was the foster mother who provided most of the actual care for the child.

{¶57} Ellen Thrush, a supervisor at MCCS, was also called as a witness by the

agency. Thrush testified that S.M. was removed from his mother’s custody as a newborn,

after he was born with marijuana in his system. The agency then also learned that Lindsey

had other children, about which she was untruthful in the agency’s investigation. Thrush

testified that S.M. was very sick at birth and had to be transferred to Nationwide Children’s

Hospital. S.M. was never released to Lindsey’s care following his birth, and Lindsey at

one point was asked to quit visiting at the hospital due to her outbursts.

{¶58} During cross examination by Lindsey’s counsel, Thrush testified that she had

visited Lindsey’s current home in Marion and there were no safety concerns. During the

visit, Thrush noted that Lindsey had clothing and proper formula for her younger child,

and had a bed for S.M., along with some toys for a child his age.

{¶59} In cross examination by Samuel’s counsel, Thrush testified that she had very

little contact with Samuel.

{¶60} Angela Windle, one of four caseworkers at MCCS who had been assigned to

S.M.’s case, also testified for the agency. Windle identified the written case plan that had

been implemented in the case, with reunification being the agency’s goal.

{¶61} As to Samuel’s progress with the case plan, Windle’s testimony reflected that

he had failed to meet nearly all goals set forth in the plan. Specifically, Samuel had not

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signed releases of information requested by the caseworker to monitor progress on the case.

Windle testified that Samuel had also failed to develop and maintain appropriate

relationships that do not negatively impact S.M., evidenced by the fact that Samuel had

never had S.M. on his own and that the agency had been forced to suspend Samuel’s

visitation due to the language he would use during visits with his son. Windle testified that

Samuel had not obtained and maintained appropriate housing for himself and S.M., as

Samuel was living at his parents’ home where there was no room for S.M. While Samuel

had undergone an alcohol and drug assessment as requested, along with a mental health

assessment, Windle testified that Samuel’s prior fentanyl addiction was a cause of concern

as to his ability to care for his son. Samuel had also undergone most of the drug screens

requested by the agency, but the most recent results indicated that he was positive for THC.

Windle testified that Samuel had not attended parenting classes as required by the case

plan, although he had attended training relating to S.M.’s medical care at Nationwide

Children’s Hospital.

{¶62} As to Lindsey’s progress with the case plan, Windle testified that Lindsey

had completed all items set forth in the case plan. However, while Lindsey had been

compliant with the specified case plan objectives, Windle testified that the agency’s

concern is that Lindsey is not able to provide the care required by S.M.’s medical condition.

Windle testified that the agency’s concern in that respect was based on observations made

over time during Lindsey’s visits with S.M. at the visitation center, as well as Lindsey’s

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seeming underestimation of both the seriousness of S.M.’s condition and the care that he

requires.

{¶63} Windle also testified as to her observations of each parent’s interaction with

S.M. As to Samuel, Windle testified that he was not extremely focused on interacting with

his son during their virtual visits, and gave examples of Samuel riding in a car, stopping at

a convenience store, and interacting with other people around him, instead of looking at

the screen during the visits. As to Lindsey, Windle testified that Lindsey would attempt to

engage with S.M. during their visits, but that Windle observed a lack of affection and

closeness between Lindsey and her son. Windle contrasted that with her observations of

how S.M.’s foster parents engage with the child, which was always in an interested and

affectionate manner.

{¶64} Windle further testified that S.M. has a close bond with both of his foster

parents. As to S.M.'s bond with his father, Windle testified that she does not think that the

child knows who Samuel is. As to S.M.’s bond with his mother, Windle testified that S.M.

is a bit more comfortable with Lindsey and would interact with her during their visits.

{¶65} Windle confirmed that S.M. was not old enough to express his own wishes

as to his custodial situation. Windle testified that S.M. requires permanency for his overall

well-being and that she did not think any additional time would serve to improve either

Lindsey’s or Samuel’s chance of reunifying with S.M. Windle concluded her direct

examination testimony by expressing her opinion that it would be in S.M.’s best interest

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for permanent custody to be granted to the agency, particularly as he has two loving foster

parents who are dedicated to his care.

{¶66} During cross examination by Lindsey’s counsel, Windle testified that the

agency initially had concerns about Lindsey’s mental health and household management,

and that those issues had therefore been included in the case plan. Windle testified that

Lindsey had previously been living at a homeless shelter, which was not appropriate for

S.M. Windle acknowledged that Lindsey had been attending mental health counseling, but

indicated that no report had been received as to her progress. Windle acknowledged that

Lindsey had completed her drug assessment and that her drug screens had been negative,

except for the most recent one. Windle agreed that the case plan did not specifically

mention anything about Lindsey’s ability to care for S.M.’s medical needs, but explained

that the case plan had been developed when S.M. was still in the hospital and those needs

were unclear to the agency.

{¶67} During cross examination by Samuel’s counsel, Windle testified that the goal

in the case had been reunification, up until the time that the motion for permanent custody

was filed. Windle also explained that Samuel’s visitation was switched from in-person to

virtual because he had transportation issues and also because of the problems he caused at

the visitation center, such as him smoking and not wearing a mask. When shown a copy

of a certificate noting Samuel’s completion of parenting classes, Windle testified that she

had never seen that documentation. Windle also acknowledged that Samuel’s lack of a

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relationship with his son was impacted by the fact that Samuel had not been able to spend

much time with S.M.

{¶68} During cross examination by the guardian ad litem, Windle testified that the

issues relating to visitation between Lindsey and S.M. were not improving and, in fact,

appeared to be getting worse. Windle’s opinion was that continuing visits between S.M.

and his mother were not in the child’s best interest, particularly as to his health. Windle

also reviewed some specifics about Samuel’s lack of engagement with S.M. during their

virtual visits, including multiple occasions where Samuel sat for over five minutes at a time

without saying anything to S.M. Windle testified as well to instances where Samuel

became enraged and used vulgar language during the virtual visits with S.M. Windle also

confirmed that Samuel had not been utilizing the full amount of visitation granted to him.

{¶69} S.M.’s foster mother, Katelyn S. (“Katelyn”), was also called as a witness by

the agency at the permanent custody hearing. Katelyn and her husband had been S.M.’s

foster parents for over three years, from the time he was released from the hospital

following his birth. Katelyn is a pediatric nurse, who holds both a bachelor’s degree and a

master’s degree in the field of nursing; however, she quit working just a couple of weeks

after S.M. came to live with them. Katelyn’s husband is also a registered nurse. Her

husband switched to a work-from-home nursing-related position after S.M. came to live

with them, so that they could both stay home and keep S.M. safe. Katelyn and her husband

received a call from the agency shortly after S.M.’s birth, and were told that foster parents

-26- Case No. 9-23-30

were needed for an infant at Nationwide Children’s Hospital who had unknown

abnormalities. At that time, Katelyn and her husband were already licensed foster-to-adopt

parents. Katelyn and her husband agreed to become foster parents to S.M., and were told

that they were the agency’s only placement option other than a nursing home, due to S.M.’s

medical condition and special needs. Katelyn and her husband went to meet the baby, and

then spent every day for two weeks with S.M. at the hospital, until the doctors there

approved the couple’s ability to care for S.M. and he was released. Other than two other

long-term hospital admissions that were needed, S.M. has lived in Katelyn’s home and

been in her care for his entire life.

{¶70} Katelyn testified that S.M. is a busy, extremely motivated child, who works

hard at meeting the challenges presented by his condition. Katelyn testified concerning

their daily routine with S.M. in their home. S.M. receives multiple types of therapy,

including speech therapy, feeding therapy, and physical therapy. Because S.M. is on

supplemental oxygen and is an active toddler, he must be watched constantly in order to

assess and evaluate his levels, while also planning for and implementing changes in his

care as needed. Katelyn testified that S.M.’s care also requires devoting much time to case

management, which includes ordering supplies, keeping appointments in line, and

communicating with his various medical providers, some of whom request weekly updates.

To assist in this, Katelyn and her husband have a list of weekly goals posted, which helps

guide them through each week and ensures that all of S.M.’s needs are being met.

-27- Case No. 9-23-30

{¶71} Katelyn also testified about her attendance at, and involvement in, numerous

visitations between S.M. and his mother. Katelyn explained that the agency began

transporting herself and S.M. to the visitation center to meet with Lindsey after Katelyn

and her husband realized that S.M. could not safely be driven there without two adults in

the car, with one person driving and the other monitoring S.M. at all times. Katelyn

testified that S.M. is never happy to go to the visits, and that he screams and cries and fights

every morning that there is a visit scheduled. Katelyn also detailed how going anywhere

with S.M. requires packing all of his equipment, including the oxygen tanks and tubes, his

monitor, and extra feeding tubes, in case he pulls out a tube.

{¶72} Katelyn then testified at length about various incidents that had occurred with

Lindsey at the visitations, including Lindsey’s frequent tantrums that involved throwing

toys, yelling, cussing, and slamming into Katelyn and staff members. Katelyn testified that

Lindsey had stated that she has back problems that prevent her from lifting S.M. and from

playing various games that he enjoys. Katelyn’s testimony about the visitations with

Lindsey corroborated the testimony given by Antigoney Lyons, with regard to Lindsey’s

repeated failure to plug in S.M.’s monitor as required, to pay attention to the monitor, and

to take appropriate action when the monitor alarmed.

{¶73} Katelyn confirmed that Lindsey had been trained by the staff at Dr.

Krivchenia’s office as to S.M.’s medical equipment but that Lindsey’s management of the

equipment during visitations did not go well. When asked if that posed a problem for S.M.,

-28- Case No. 9-23-30

Katelyn testified that it absolutely did, as S.M. needs that equipment to live. Katelyn

testified that, based on her observations over the past three years, Lindsey had

demonstrated an inability to care for S.M.’s needs.

{¶74} Katelyn then testified specifically about the incident that occurred at a

visitation with Lindsey on February 15, 2022. Upon arriving at the visitation center,

Katelyn set up two oxygen tanks for Lindsey, one that S.M. was using and a full one to

serve as a spare. As Katelyn watched from the office on a monitor, Lindsey turned off the

oxygen tank that S.M. was using. Lindsey then seemed to get very confused and did

nothing further. Katelyn ultimately ran into the room once she realized that S.M. had no

oxygen, and got him switched over to a different tank. Lindsey began yelling and cussing

at Katelyn, who was focused on tending to S.M. Katelyn testified that the monitor was

going crazy, showing S.M.’s oxygen level to be down to 64 percent and his heart rate at

only 14. Katelyn used a stethoscope she had around her neck to manually check S.M.’s

heart rate and could not hear a heartbeat. Katelyn realized that S.M. needed CPR, and so

she ripped the monitor cords out of the wall and ran to the door with S.M., in order to take

him to a safe place to start compressions. Lindsey then blocked the door, and so Katelyn

began yelling for staff to call a squad. Katelyn testified that, at that point, Lindsey left the

room and Katelyn was able to get S.M.’s oxygen level stabilized and his heart rate

increased. The emergency medical squad arrived, and Katelyn had the EMTs confirm with

their own equipment that S.M. was once again stable. Katelyn testified that the entire

-29- Case No. 9-23-30

experience that day was horrible, with S.M. having been put at a very real risk of dying

through Lindsey’s actions.

{¶75} Finally, Katelyn testified on direct examination that she and her husband

would not hesitate to adopt S.M., should they be given that opportunity.

{¶76} In cross examination by Lindsey’s counsel, Katelyn testified in detail about

S.M.’s oxygen requirements, how the monitor functions, and the adjustments that need to

be made under various circumstances to the amount of oxygen S.M. receives. Katelyn also

acknowledged that S.M. calls her “mama” and refers to her husband as “dada.”

{¶77} During cross examination by Samuel’s attorney, Katelyn testified that she

had not had much contact with Samuel. When asked about S.M. referring to Katelyn and

her husband as “mama” and “dada”, Katelyn testified that Lindsey was the one who had

suggested that early on, saying that S.M. needed to feel like he was with parents. Katelyn

testified that she and her husband were initially hesitant to let S.M. refer to them in that

manner, but that they learned in their Ohio Child Welfare training program that it is not

unhealthy for a foster child to refer to foster parents as “mom” and “dad” because the foster

parents are indeed functioning as a mother and father in the home where they live and care

for the child.

{¶78} In cross examination by the guardian ad litem, Katelyn testified that S.M.’s

visitation with his father is virtual and that Samuel has missed a number of visitations.

Katelyn then testified further about S.M.’s daily routine, including the outpatient feeding

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therapy that he was currently enrolled in, and the very time-consuming efforts that Katelyn

and her husband were making to teach S.M. how to safely chew and swallow. Katelyn

testified that while caring for S.M. kept them busy, S.M. was doing very well at meeting

the goals set for him by his pediatrician’s office.

{¶79} The agency also called Lindsey to the stand at the hearing, as upon cross

examination. Lindsey confirmed that S.M. was medically fragile, due to a rare genetic

condition inherited from his father, and that S.M.’s medical issues were apparent at birth.

Lindsey testified that S.M. should eventually be coming off his oxygen support, due to his

age. She asserted that the longer S.M. becomes dependent on oxygen, the longer his lungs

weaken and that the best thing for S.M. would be to get him strong enough to maintain his

oxygen level and heart rate like a normal child. Lindsey testified that S.M. is fragile

because he has been kept in isolation, without exposure to bacteria and different

environmental airflows. She added that it is not sustainable for a human body to remain

on a feeding tube for life, and that S.M. needs to quit using the oxygen and feeding tube at

some point, which is necessary for development. Lindsey opined that turning up S.M.’s

oxygen flow rate was causing his lungs to become accustomed to the extra support and was

making it harder to wean him off the oxygen.

{¶80} Lindsey further testified that, if S.M. were returned to her custody, she had a

home ready for him, that she knew all his doctors, and knew where to obtain his oxygen

supply. She testified that she was very knowledgeable about S.M.’s medical needs.

-31- Case No. 9-23-30

Lindsey criticized the medical care that S.M. had been receiving, saying he needed a second

evaluation and needed to see a geneticist. She asserted that S.M. was not properly

diagnosed and that he needed in-person therapy. Lindsey testified that she could care for

S.M. in much the same way that she was currently caring for “E”, her younger child,

including taking care of diapers and letting the kids play together. Lindsey said that she

had experience dealing with S.M.’s condition because his father had the same condition

and she had been dealing with that for years. Lindsey testified that S.M.’s care was not

being properly managed by his foster parents. She reiterated that keeping him in

“isolation” was not what he needed and that, instead, he needed exposure to the

environment. Lindsey asserted that S.M.’s foster mother was making it appear that the

child was more ill than he actually is. At that point, Lindsey’s cross examination was

paused, so that the court could receive the testimony of Dr. Krivchenia, who was testifying

remotely.

{¶81} Following the doctor’s testimony, Lindsey resumed the stand for continued

cross examination by the agency. At that point, the opinions expressed through Lindsey’s

testimony shifted greatly in comparison to the testimony she had given prior to Dr.

Krivchenia having testified. Lindsey acknowledged that, contrary to her earlier assertion

that S.M. needed to see a geneticist, he apparently already had. While Lindsey in her initial

cross examination had advocated weaning S.M. from supplemental oxygen because it was

weakening his lungs, she testified after the break that it was best to follow the doctor’s

-32- Case No. 9-23-30

recommendations; however, Lindsey then added that S.M. still needed to be taken off the

oxygen but slowly.

{¶82} Lindsey also acknowledged that she had been banned from the hospital

following S.M.’s birth. Lindsey testified that she has PTSD, which is why she would not

let the foster mother out of the room during the visitation when the emergency squad

needed to be called. Lindsey testified that she thought the foster mother was calling the

police. With regard to that same incident when S.M.’s oxygen level and heart rate

plummeted, Lindsey testified that S.M. showed no signs of distress, that he did not scream

or turn blue. Lindsey testified that, pursuant to an order by the trial court, she had

ultimately been prohibited from handling S.M.’s medical equipment. Lindsey testified that

an unknown person had turned the oxygen tank off and that she had been blamed for it.

{¶83} Lindsey also testified at length about Antigoney Lyons’ handling of the

visitation, criticizing the agency employee in various ways and further complaining about

how dirty the visitation center was. With regard to the case plan that had been implemented

by the agency when S.M. was two months old, Lindsey testified that she was in full

compliance with that plan and had been for three years; however, she then acknowledged

that she had refused to sign the case plan and had also revoked releases that she had initially

signed. With regard to the drug screens required by the plan, Lindsey testified that she had

given up her medical marijuana card and denied that she had tested positive for marijuana

-33- Case No. 9-23-30

just prior to the permanent custody hearing. She testified that she had fully completed the

required medical training in order to ensure that she can care for S.M.’s medical needs.

{¶84} When asked about the foul language that she repeatedly used when at the

visitation center, Lindsey testified that the use of such language was because she was from

Boston, Massachusetts and everyone knows that people from Boston are “assholes”.

Lindsey stated that she cannot change something that has been bred into her after an entire

life of living in Massachusetts. Lindsey was also asked about four children that she had

given birth to while previously living in Massachusetts, and she testified that two of the

children lived with their fathers and that two of the children had been taken away from her

involuntarily, with permanent custody of them granted to the state of Massachusetts.

Lindsey then testified that she had some type of shared custody of the two children who

reside with their fathers in Massachusetts.

{¶85} Upon cross examination by the guardian ad litem, Lindsey acknowledged that

the father of one of the children in Massachusetts would not permit her to have contact

with his child, but Lindsey blamed that on the fact that she had been previously abused by

that child’s father. Upon further inquiry, Lindsey acknowledged that the father of her other

child in Massachusetts would also not permit Lindsey to see that child. When asked if it

was true that she also had been highly confrontational with the agency workers in

Massachusetts, Lindsey said no, because there was a court order banning her from the

agency’s property. Lindsey was asked about employment, and she testified that she was

-34- Case No. 9-23-30

working at McDonald’s, where she had been employed for two to three weeks. Lindsey

testified that if S.M. were to be returned to her, that she would stop working to care for

him. Lindsey confirmed that she lived alone with her youngest child. Lindsey testified

that she had not been in regular contact with Dr. Krivchenia because she was unable to

reach the doctor by phone.

{¶86} Following Lindsey’s testimony, the agency called Samuel to the stand, also

as upon cross examination. Samuel testified that he was currently living in Columbus,

Ohio with his parents, brother, and sisters, and that he was probably not in a position to

take custody of S.M. should that be ordered by the court. Samuel testified that his parents’

home was filled to capacity, that he still had some “fighting” to do, in reference to a long-

term fentanyl addiction, and that he also needed to work on his mental health. He testified

that his addiction issue had been greatly improved over the last few months, and that his

drug screenings were showing lower and lower amounts in his system. He testified that he

had also recently given up smoking. Samuel testified that it was his desire that custody of

S.M. be given to Lindsey, but with fifty-percent visitation rights for Samuel. Samuel

testified that he had the same genetic condition as S.M., but that, in Samuel’s case, his

lungs improved as he got older and that he now just uses an inhaler. He testified that

Lindsey was very familiar with the medical condition after helping him with it for so many

years, and he has the utmost faith in her ability to potentially care for S.M.

-35- Case No. 9-23-30

{¶87} Upon cross examination by the guardian ad litem, Samuel testified that he

had been sober for several years, but that he continues to use marijuana because it helps

with his arthritis pain and his anxiety and depression. Samuel testified that he was currently

employed and earning approximately $3,000.00 per month before taxes.

{¶88} After the testimony of the above witnesses, the agency moved for admission

of its exhibits and rested its case.

{¶89} Lindsey then took the stand as a witness on her own behalf. Much of

Lindsey’s testimony on direct examination was on the same topics, and of a substantially

similar substance, as that she had given during her prior cross examination.

{¶90} In addition, Lindsey testified that S.M. had interstitial lung disease, believed

to be Chitayat Syndrome and “Saethre’s syndrome”, but she asserted that he had yet to be

diagnosed. Lindsey testified that the doctors are trying to find the best treatment for S.M.,

and that the doctors had chosen to give him supplemental oxygen and to install a feeding

tube in his belly. Lindsey testified that there is a need for the oxygen and the feeding tube,

that she had previously cared for S.M., and that she was able to do so. She testified that

she was willing to work with hospital staff and anyone else necessary in order to care for

her son.

{¶91} Lindsey testified that, contrary to the testimony of the prior witnesses, S.M.

has never reacted poorly at any of the visits with her. When asked about the visit when the

emergency squad was ultimately called, Lindsey testified that she did not have a chance to

-36- Case No. 9-23-30

assess the monitors before Katelyn interrupted, and that the monitor had only been beeping

for ten seconds. Lindsey said that she blocked the doorway because Katelyn would not

explain what was wrong with S.M. While Lindsey left the visitation center at that point

because she thought Katelyn was calling the police, Lindsey testified that she had checked

in later with the agency caseworker. Lindsey testified that S.M. was stable when checked

by the EMTs and so there was “nothing wrong.”

{¶92} As to other aspects of her ability to care for S.M., Lindsey testified that her

inability to lift him during visitation was due to a condition resulting from her pregnancies,

that she was still under a medical restriction of not lifting over ten pounds, but that she

would pick him up if necessary. Lindsey then referenced upcoming plans she had to fly to

Massachusetts to visit her other children and testified, if S.M. were returned to her custody,

that she would drive to Massachusetts and take S.M. with her. Lindsey testified that her

home in Marion, Ohio is 1200 square feet and, while there is only one bedroom, there is a

bed there for S.M., as well as a bed for herself, and also one for her younger son, “E”.

Lindsey testified she was familiar with the services that handle delivery of oxygen and

other medical supplies for S.M. and that she was willing to make a “team effort” with the

agency and the foster parents to facilitate returning S.M. to her care.

{¶93} Lindsey testified that she would love to see S.M. weaned from the oxygen

but that she would comply with the advice of medical professionals in weaning him off.

Lindsey then stated that she needed a second medical opinion as to the proper course of

-37- Case No. 9-23-30

her son’s medical treatment, as the current treatment team was not working together.

Lindsey acknowledged that, as testified to by prior witnesses, it has taken her 35 seconds

to change oxygen tanks, but that sometimes she does it faster than that and sometimes more

slowly. Lindsey testified that she had not been able to demonstrate her skills as to S.M.’s

care during visitation because his foster mother would constantly intervene. Lindsey

testified that she did not change diapers during her visits with S.M. because she was denied

access to the diaper bag. When asked if S.M. was getting good care from his foster parents,

Lindsey testified that he was getting sufficient care, but that she could provide better.

Lindsey testified that she loves S.M. very much and is bonded with him, and that it is in

his best interest to return home to her. She added that she wants to see S.M. live a full,

productive life, unhindered by oxygen support and monitors.

{¶94} During cross examination by counsel for the agency, Lindsey’s testimony

primarily focused on the same issues about which she had already testified throughout the

hearing. Lindsey also became extremely belligerent and argumentative while being

questioned, utilized language not appropriate for the courtroom, and at great length

criticized and disparaged many of the persons involved in the case, including counsel for

the agency, her own attorney, the caseworker, and the foster mother.

{¶95} During cross examination by the guardian ad litem, Lindsey repeated her

prior assertion that S.M. had not been diagnosed with Chitayat Syndrome, notwithstanding

the fact that Dr. Krivchenia had testified to the contrary.

-38- Case No. 9-23-30

{¶96} The final witness to testify at the permanent custody hearing was Sara Babich,

the guardian ad litem appointed by the trial court. Babich testified as to her education and

work experience, and then detailed the investigation she had completed in the case. Babich

testified that her recommendation was that the parental rights be terminated and that S.M.

be placed for adoption with his foster parents. As a result of her investigation, Babich had

determined that neither parent was able to adequately care for S.M, particularly in light of

his health issues. Based on her interview with Lindsey and Lindsey’s testimony in court,

Babich concluded that Lindsey does not understand the severity of S.M.’s condition.

Babich expressed concern that if S.M. were returned to Lindsey, the child would be put at

risk for even more serious health complications or death. Babich testified that the agency’s

case plan was not drafted as well as it could have been and, while Lindsey may have

completed the list of objectives set forth in the plan, it is also implied in every case plan

that the parents must become able to care for the child, which had not been demonstrated

here.

{¶97} Following this Court’s independent review of the record, we find that the trial

court took all relevant evidence into account and applied the appropriate statutory factors

in making its “best interest of the child” determination. That decision was supported by

clear and convincing evidence, as the evidence presented at the permanent custody hearing

overwhelmingly established that a grant of permanent custody to the agency is in the best

interest of S.M.

-39- Case No. 9-23-30

{¶98} In particular, we note that Samuel failed to participate fully in the visitation

opportunities made available to him, and did not complete most of the case plan objectives.

While Lindsey may have completed the list of objectives set forth on the face of the case

plan, case plan compliance does not preclude a grant a permanent custody to a children’s

services agency. See, e.g., In re Gomer, 3d Dist. Wyandot Nos. 16–03–19, 16–03–20, and

16-03-21, 2004-Ohio-1723, ¶ 36; In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-

5841, ¶ 46.

{¶99} While the record reflects that both Lindsey and Samuel expressed love or

concern for S.M., and that Lindsey has established a certain bond with the child, S.M. is

very well bonded with his foster parents. Further, the evidence did establish that both

parents are employed, and that Lindsey had found housing and purchased clothing and toys

for S.M. However, S.M.’s best interest requires more than a parent simply loving the child

and providing him a place to live.

{¶100} The most important factor in this case is that, due to S.M.’s young age and

his significant health issues, his well-being demands continuous monitoring and care

throughout the day. As S.M. is dependent on supplemental oxygen and a feeding tube, his

safety requires a custodian, or custodians, able to competently manage the medical devices

and willing to do so. The evidence adduced at the permanent custody hearing indisputably

established that both parents lack the ability and/or the willingness to adequately care for

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S.M.’s medical needs, and therefore cannot provide him with a stable, safe, and nurturing

environment. As the trial court accurately concluded, based on the evidence presented,

“[c]onsistent care is vital for [S.M.]’s survival, and that care cannot be accomplished

without a grant of permanent custody to MCCSB.”

{¶101} For the reasons stated, and in light of all of the evidence detailed above, the

trial court’s decision granting permanent custody to the agency is not against the manifest

weight of the evidence. The first assignments of error are overruled.

Second Assignments of Error

{¶102} In the second assignments of error, Lindsey and Samuel assert that the trial

court failed to satisfy its obligation under App.R. 9(A)(2) to make a full record of the

permanent custody hearing and thereby denied them due process. Specifically, Lindsey

and Samuel argue that because the term “Inaudible” appears frequently in the transcripts

of the permanent custody hearing, a thorough review of the proceedings by this Court on

appeal is not possible.

App.R. 9(A)(2) provides:

The trial court shall ensure that all proceedings of record are recorded by a reliable method, which may include a stenographic/shorthand reporter, audio-recording device, and/or video-recording device. The selection of the method in each case is in the sound discretion of the trial court, except that in all capital cases the proceedings shall be recorded by a stenographic/shorthand reporter in addition to any other recording device the trial court wishes to employ.

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{¶103} “An accurate transcript is the lynch pin of appellate review.” State v.

Cunningham, 4th Dist. Washington No. 91 CA 30, 1993 WL 97713, at *4 (Apr. 2. 1993).

It is the trial court’s responsibility to ensure that the method employed to record

proceedings is adequate. State v. Whitaker, 3d Dist. Henry Nos. 7-91-5 to 7-91-10, 1991

WL 256517, at *1 (Nov. 27, 1991). “Nevertheless, recording equipment is not infallible

and is subject to unanticipated malfunctions. For this reason, ‘[t]he failure of recording

equipment in the trial court does not result in prejudice per se.’” Cleveland v. McGervey,

8th Dist. Cuyahoga No. 110770, 2022-Ohio-3911, ¶ 24, quoting State v. Beltowski, 11th

Dist. Lake No. 2006-L-032, 2007-Ohio-3372, ¶ 30.

{¶104} In the instant case, the record reflects that the trial court digitally recorded

the entirety of the permanent custody hearing, but there are a considerable number of places

in the transcription of the hearing where “(Inaudible)” appears. The court reporter’s note

indicates that those gaps in the record are primarily due to counsel walking away from the

microphone, or someone coughing in the courtroom. (Tr., 6).

{¶105} Upon the issue with the transcription being brought to the attention of the

trial court after the transcript was prepared, that court and counsel utilized the procedure

set forth in App.R. 9(C) to supplement the incomplete transcript, which corrected the

problem to some extent.

{¶106} While the transcription of the permanent custody hearing does still contain

a great number of instances where the term “(Inaudible)” appears, there is ultimately no

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difficulty in fully understanding the development of the testimony at the proceeding

regarding the facts at issue. That being the case, the trial court’s failure to provide a

complete record of the hearing does not amount to reversible error. See In re S.L., 3d Dist.

Union Nos. 14-15-07, 14-15-08, 2016-Ohio-5000, ¶¶ 48-52.

{¶107} We also note that Lindsey and Samuel, who were both present for the

entirety of the permanent custody hearing, make no assertion on appeal as to any material

testimony that they, or any other witnesses, may have given that fails to appear in the

record.

{¶108} Most importantly, this Court cannot conceive of any facts that could have

theoretically been testified to that would impact or change the ultimate determination that,

based on overwhelming evidence in the record, neither parent is able or willing to

adequately care for their medically fragile child.

{¶109} For all of those reasons, the second assignments of error are overruled.

Conclusion

{¶110} Having found no error in the particulars assigned and argued by either

appellant in this case, the judgment of the Marion County Common Pleas Court, Family

Division, is affirmed.

Judgment Affirmed WILLAMOWSKI, P.J. and MILLER, J., concur.

/hls

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