In re S.M.
Opinion
[Cite as In re S.M., 2024-Ohio-992.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
In re S.M. Court of Appeals No. H-23-026
Trial Court No. DNA 2022 00006
DECISION AND JUDGMENT
Decided: March 15, 2024
*****
Richard H. Palau, for appellee.
Miles T. Mull, for appellant.
DUHART, J.
{¶ 1} This is an appeal from the September 20, 2023 judgment of the Huron
County Court of Common Pleas, Juvenile Division, terminating the parental rights of
appellant, T.M., the mother of minor child, S.M. (“SM”), and granting permanent custody
of the child to appellee, Huron County Department of Job and Family Services (“the
agency”). For the reasons that follow, we affirm the judgment. {¶ 2} Mother sets forth one assignment of error:
The trial court’s decision to terminate parental rights and responsibilities
was not supported by clear and convincing evidence, being against the
manifest weight of evidence presented at trial.
Background
{¶ 3} SM was born in July 2016, to mother and father, L.M. SM lived with
mother, an older half-sibling (“sibling”),1 maternal great-grandmother (“GG”) and other
extended family members. In 2018, GG became the legal custodian of the children
because mother was in prison. The family home where the children and others lived was
unsanitary and cluttered, and the children were not attending school.
Agency’s Complaints
{¶ 4} On January 20, 2022, the agency filed complaints alleging the children were
dependent. The complaint regarding SM indicated that in December 2021, the agency
became involved due to concerns of dependency regarding GG’s ability to care for SM.
GG had been admitted to a mental health facility due to her difficulty managing SM’s
behaviors, as caring for SM impacted GG’s mental health. The complaint further set
forth that in early January 2022, GG was hospitalized due to physical health issues, GG
1 Sibling has a different father than SM. Sibling is not the subject of this appeal, but certain information about sibling is relevant and significant to SM and this appeal. Our reference to “children” includes both SM and sibling.
2. was then admitted to a skilled nursing facility, and it was unknown when she could go
home. It was alleged that GG was unable to care for SM.
Hearing
{¶ 5} Also on January 20, 2022, a shelter care hearing was held. The agency was
granted temporary custody of the children and they were placed in a foster home. Shortly
thereafter, the court assigned a guardian ad litem (“GAL”) for the children.
First Case Plan
{¶ 6} On March 1, 2022, a family case plan was filed. Parties to the plan were
SM, mother, sibling and sibling’s father, and four concerns were set forth: sibling was
missing school and acting aggressively towards family members; household
environmental hazards were present where mother lived, including garbage in and around
the house; SM was not attending school due to mother’s struggle to redirect sibling’s
undesired behavior; and sibling’s father desires to have a relationship with sibling, but
sibling does not want to have contact with his father. Services to alleviate these concerns
included mother: undergoing a mental health assessment and following all
recommendations; attending parenting classes; and, having supervised visits with the
children.
Legal Custody Motions
{¶ 7} On March 10, 2022, sibling’s father filed a motion for legal custody of the
children. Thereafter, motions for legal custody of the children were filed by maternal
grandmother (“MG”), maternal uncle and mother.
3. Hearing
{¶ 8} On April 7, 2022, the adjudication hearing was held and the court found the
children were dependent.
GAL Report
{¶ 9} On April 8, 2022, the GAL filed her report for the upcoming dispositional
hearing and pretrial on the motions for legal custody. The report set forth, inter alia: the
children were in the same foster home, they were in mental health counseling and
attended school regularly; mother visited with the children one day per week; mother
lived in a three-bedroom house rented by her aunt and aunt’s fiancé, who both lived there
along with MG and GG; mother recognized the house needed to be more orderly and
clean; mother had no job or income, she was a felon and her driver’s license was
suspended due to an OVI in 2021; and, SM had no contact with her father since she was
one year old. The GAL recommended the agency’s temporary custody of the children
continue.
Hearing and Visits
{¶ 10} On April 11, 2022, the dispositional hearing and initial pretrial on the
motions for legal custody were held. The court found there were no appropriate relatives
willing to be temporary custodians of the children, and ordered their placement with the
agency continue. In addition, the court ordered mother to do the following: submit to a
mental health assessment and actively participate in and successfully complete all
recommended treatment; actively participate and successfully complete family
4. counseling with the children; actively participate and successfully complete a parenting
education program approved by the agency; and, obtain and maintain employment.
{¶ 11} Thereafter, visitation recommendations were filed. Mother recommended
that the court expand her visits with the children to include unsupervised visits, since she
made progress in her case plan goals, as she was actively engaged in counseling and
visits with the children, she had nearly completed parenting classes, and was seeking a
job. The agency’s recommendations practically mirrored those of mother, and included
that mother made progress cleaning and decluttering common areas of the home and that
mother be allowed unsupervised visits starting with two hours a week, but not at her
home. The GAL concurred with the agency’s recommendations that mother be allowed
unsupervised visits starting with two hours a week and not at her home.
{¶ 12} On May 13, 2022, the court ordered that mother may have unsupervised
visits with the children up to two hours a week in a public place approved by the agency.
{¶ 13} On June 21, 2022, the GAL filed a report regarding the pending motions
for legal custody, which provided, inter alia: the children were in the same foster home;
following assessments, neither child needed mental health services; mother had weekly
supervised visits with the children; sibling’s father had unsupervised visits with the
children and in May 2022, started overnight visits with them; SM attended two overnight
visits, but sibling’s father found SM required too much of his attention such that his time
with sibling was compromised; he and his fiancée were alarmed at SM’s sexualized play,
5. so SM did not attend further overnight visits; sibling was accused by another child in the
foster home of attempting to have inappropriate contact; sibling was placed with his
father; SM had to repeat kindergarten and had tooth decay, so the foster parents had to
pursue dental care; mental health services for SM also had to be pursued, despite the
assessment indicating none were needed; mother lived in the same house with three other
adults; GG passed away June 14, 2022; GG had owned the only working car; numerous
dogs and cats were still in the house; mother had no job and had to attend a three-day
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[Cite as In re S.M., 2024-Ohio-992.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT HURON COUNTY
In re S.M. Court of Appeals No. H-23-026
Trial Court No. DNA 2022 00006
DECISION AND JUDGMENT
Decided: March 15, 2024
*****
Richard H. Palau, for appellee.
Miles T. Mull, for appellant.
DUHART, J.
{¶ 1} This is an appeal from the September 20, 2023 judgment of the Huron
County Court of Common Pleas, Juvenile Division, terminating the parental rights of
appellant, T.M., the mother of minor child, S.M. (“SM”), and granting permanent custody
of the child to appellee, Huron County Department of Job and Family Services (“the
agency”). For the reasons that follow, we affirm the judgment. {¶ 2} Mother sets forth one assignment of error:
The trial court’s decision to terminate parental rights and responsibilities
was not supported by clear and convincing evidence, being against the
manifest weight of evidence presented at trial.
Background
{¶ 3} SM was born in July 2016, to mother and father, L.M. SM lived with
mother, an older half-sibling (“sibling”),1 maternal great-grandmother (“GG”) and other
extended family members. In 2018, GG became the legal custodian of the children
because mother was in prison. The family home where the children and others lived was
unsanitary and cluttered, and the children were not attending school.
Agency’s Complaints
{¶ 4} On January 20, 2022, the agency filed complaints alleging the children were
dependent. The complaint regarding SM indicated that in December 2021, the agency
became involved due to concerns of dependency regarding GG’s ability to care for SM.
GG had been admitted to a mental health facility due to her difficulty managing SM’s
behaviors, as caring for SM impacted GG’s mental health. The complaint further set
forth that in early January 2022, GG was hospitalized due to physical health issues, GG
1 Sibling has a different father than SM. Sibling is not the subject of this appeal, but certain information about sibling is relevant and significant to SM and this appeal. Our reference to “children” includes both SM and sibling.
2. was then admitted to a skilled nursing facility, and it was unknown when she could go
home. It was alleged that GG was unable to care for SM.
Hearing
{¶ 5} Also on January 20, 2022, a shelter care hearing was held. The agency was
granted temporary custody of the children and they were placed in a foster home. Shortly
thereafter, the court assigned a guardian ad litem (“GAL”) for the children.
First Case Plan
{¶ 6} On March 1, 2022, a family case plan was filed. Parties to the plan were
SM, mother, sibling and sibling’s father, and four concerns were set forth: sibling was
missing school and acting aggressively towards family members; household
environmental hazards were present where mother lived, including garbage in and around
the house; SM was not attending school due to mother’s struggle to redirect sibling’s
undesired behavior; and sibling’s father desires to have a relationship with sibling, but
sibling does not want to have contact with his father. Services to alleviate these concerns
included mother: undergoing a mental health assessment and following all
recommendations; attending parenting classes; and, having supervised visits with the
children.
Legal Custody Motions
{¶ 7} On March 10, 2022, sibling’s father filed a motion for legal custody of the
children. Thereafter, motions for legal custody of the children were filed by maternal
grandmother (“MG”), maternal uncle and mother.
3. Hearing
{¶ 8} On April 7, 2022, the adjudication hearing was held and the court found the
children were dependent.
GAL Report
{¶ 9} On April 8, 2022, the GAL filed her report for the upcoming dispositional
hearing and pretrial on the motions for legal custody. The report set forth, inter alia: the
children were in the same foster home, they were in mental health counseling and
attended school regularly; mother visited with the children one day per week; mother
lived in a three-bedroom house rented by her aunt and aunt’s fiancé, who both lived there
along with MG and GG; mother recognized the house needed to be more orderly and
clean; mother had no job or income, she was a felon and her driver’s license was
suspended due to an OVI in 2021; and, SM had no contact with her father since she was
one year old. The GAL recommended the agency’s temporary custody of the children
continue.
Hearing and Visits
{¶ 10} On April 11, 2022, the dispositional hearing and initial pretrial on the
motions for legal custody were held. The court found there were no appropriate relatives
willing to be temporary custodians of the children, and ordered their placement with the
agency continue. In addition, the court ordered mother to do the following: submit to a
mental health assessment and actively participate in and successfully complete all
recommended treatment; actively participate and successfully complete family
4. counseling with the children; actively participate and successfully complete a parenting
education program approved by the agency; and, obtain and maintain employment.
{¶ 11} Thereafter, visitation recommendations were filed. Mother recommended
that the court expand her visits with the children to include unsupervised visits, since she
made progress in her case plan goals, as she was actively engaged in counseling and
visits with the children, she had nearly completed parenting classes, and was seeking a
job. The agency’s recommendations practically mirrored those of mother, and included
that mother made progress cleaning and decluttering common areas of the home and that
mother be allowed unsupervised visits starting with two hours a week, but not at her
home. The GAL concurred with the agency’s recommendations that mother be allowed
unsupervised visits starting with two hours a week and not at her home.
{¶ 12} On May 13, 2022, the court ordered that mother may have unsupervised
visits with the children up to two hours a week in a public place approved by the agency.
{¶ 13} On June 21, 2022, the GAL filed a report regarding the pending motions
for legal custody, which provided, inter alia: the children were in the same foster home;
following assessments, neither child needed mental health services; mother had weekly
supervised visits with the children; sibling’s father had unsupervised visits with the
children and in May 2022, started overnight visits with them; SM attended two overnight
visits, but sibling’s father found SM required too much of his attention such that his time
with sibling was compromised; he and his fiancée were alarmed at SM’s sexualized play,
5. so SM did not attend further overnight visits; sibling was accused by another child in the
foster home of attempting to have inappropriate contact; sibling was placed with his
father; SM had to repeat kindergarten and had tooth decay, so the foster parents had to
pursue dental care; mental health services for SM also had to be pursued, despite the
assessment indicating none were needed; mother lived in the same house with three other
adults; GG passed away June 14, 2022; GG had owned the only working car; numerous
dogs and cats were still in the house; mother had no job and had to attend a three-day
drug and alcohol seminar for her OVI conviction; she had no driver’s license; her mental
health services were discontinued due to no calls-no shows; she completed four out of
eleven parenting classes; she attended all available visits with the children, which went
fairly well; SM was reeling over her sibling leaving the foster home; mother’s home
environment was the same; mother had reported that when SM lived with her, SM was
often sick and could not attend school; SM was sick one time in the foster home; and, the
GAL asked mother about raunchy material seen by SM on the phone mother gave her to
use before she went to the foster home and mother said she used safety apps on the phone
but a relative removed the apps when SM cried about not being able to access horror
shows. The GAL did not see mother prepared to safely parent SM, and recommended the
agency’s temporary custody continue, and mother engage in mental health counseling,
finish parenting classes and get a job.
6. Hearing
{¶ 14} On July 12, 2022, a hearing was held on the motions for legal custody. The
uncle did not appear at the hearing so the court dismissed his motion for want of
prosecution. Thereafter, all of the remaining motions were withdrawn by the movants.
Amended Case Plan and Visits
{¶ 15} On July 21, 2022, an amended case plan for SM and mother was filed, with
two concerns: household environmental hazards, including garbage in and around the
house; and, mother’s substance abuse, as she tested positive for methamphetamines
(“meth”) and THC.2 Services to alleviate these concerns included: mother schedule
substance use and mental health assessments and follow all recommendations; the
caseworker assist the family in acquiring materials to keep the house clean and safe (the
agency had previously offered vouchers to the family to start the cleaning process);
mother be open and honest with treatment providers and the agency; and, mother submit
to random drug screens requested by the agency, GAL and treatment providers.
{¶ 16} Thereafter, visitation recommendations were filed. Mother recommended
that her visits with the children remain the same as previously ordered, since she
completed parenting classes, reinitiated counseling and attended all sessions, and “is
voluntarily submitting to a substance abuse screen and will comply with any
2 THC is a psychoactive component of marijuana. See State v. Alexander, 6th Dist. Lucas No. L-21-1129, 2022-Ohio-2430, ¶ 6.
7. recommended treatment.” The agency recommended that mother have only supervised
visits with the children. The GAL recommended that mother have only supervised visits
with the children until she successfully completed six weeks of substance abuse
counseling and had at least six consecutive weeks of clean drug screens.
{¶ 17} On August 5, 2022, the court ordered that mother only have supervised
visits with the children. The court further ordered that once mother completed a
minimum of six weeks of substance abuse counseling and had a minimum of six
consecutive weeks of clean substance abuse screens, she may file a motion for increased
visitation.
{¶ 18} On November 28, 2022, the GAL filed a report for the approaching
dispositional hearing, which provided, inter alia: due to allegations that SM was exposed
to sexual behavior by sibling, or generally while in mother’s home, SM participated in
mental health sessions with a therapist, which went well and no more concerns were
raised; SM had no behavioral issues at school or the foster house; SM had to repeat
kindergarten due to the amount of school she had previously missed; SM still had tooth
decay ; the foster parents recently found a provider who took SM’s Medicaid, so dental
treatment started in October 2022; mother lived in the same house with three other adults;
the GAL went to the family house September 1, 2022, for an unannounced visit, and
heard voices inside, but no one answered the door; the GAL saw mother after mother’s
visits with SM due to the continued bug infestation at the house and mother’s positive
8. drug screens; mother had no income, no job and no driver’s license; mother said she was
supported by her fiancé and they had a place to live; the GAL asked mother three times to
arrange a background check of her fiancé, but mother made no arrangements; mother
participated in mental health services over the phone; the agency recommended that
mother attend in-person sessions due to her positive drug screens, but mother refused;
mother’s last two drugs screens were extremely high for meth; SM expressed a desire to
return to mother; and, due to mother’s lack of progress, there was an effort to locate a
possible adoptive home for SM. The GAL’s recommendations included: SM remain in
the agency’s temporary custody; and, mother engage in and complete counseling, provide
drug screens when requested and get a job so she has adequate income for her family.
Hearing and Placement Change
{¶ 19} On December 8, 2022, a dispositional hearing was held, and the court
extended the agency’s temporary custody of SM for another six months, and ordered that
mother have only supervised visits with SM.
{¶ 20} In December 2022, the agency filed a notice of placement change for SM,
since her original placement was not able to provide permanency for SM, if needed.
Semi-Annual Review Report and GAL Report
{¶ 21} On February 27, 2023, the agency filed its semi-annual administrative
review report, which set forth the same two concerns with mother noted in the amended
case plan filed July 21, 2022.
9. {¶ 22} On April 13, 2023, the GAL filed a report for the upcoming dispositional
hearing which set forth, inter alia: SM had two dental surgeries to remove decayed teeth
and to treat infection; SM received outstanding marks in almost every category at school;
at SM’s new foster home, she had her own room, she had two younger foster brothers
who she enjoyed, she was responding well to her new foster parents, and appeared happy
and confident; SM was in gymnastics over the winter and was playing T-ball in the
spring; mother lived in the same house with her aunt, aunt’s fiancé and GM, although
GM reported that her fiancé and mother’s fiancé also lived in the house; aunt and aunt’s
fiancé were relocating and told mother she had to leave the house eventually; mother
indicated she and GM want to rent an apartment together; the GAL last visited the house
on March 9, 2023, and saw mother’s boyfriend3 there, then he left and mother walked up
and reported that the boyfriend lived at the VOA4 in Mansfield; the house still had a
visible bug problem, but the hole in the bathroom floor was patched and the living room
was decluttered; mother enrolled in counseling; IOP (intensive outpatient program) was
recommended, but mother refused; her February 2023 drug screen was positive for meth,
amphetamines (“amphet”)5 and THC; her March 9, 2023 drug screen was positive for
3 The record refers to mother’s fiancé and boyfriend; the record is not clear as to his true status. 4 There is no indication in the record what this is. 5 Meth is converted by the body into amphet. See In re B.M., 6th Dist. Williams No. WM-23-008, 2024-Ohio-111, ¶ 6.
10. meth; mother reported she did not believe her mental health was good because it was
hard for her to get out of bed; she was still unemployed; she visited with SM weekly for
an hour and the visits went well; and, SM continued to express a desire to return to
mother’s house. The GAL’s recommendations included: SM remain in the agency’s
temporary custody; mother engage in and complete counseling; mother participate in IOP
as recommended by her counselor; mother provide drug screens when requested; and,
mother find a full-time job so she has adequate income for the family.
{¶ 23} On April 27, 2023, a dispositional hearing was held. The court extended
the agency’s temporary custody of SM for another six months and ordered, inter alia, that
Motion for Permanent Custody
{¶ 24} On June 7, 2023, the agency filed a motion for permanent custody of SM
pursuant to R.C. 2151.413(A) and (D)(1) and R.C. 2151.414(B). The agency asserted
SM had been in the agency’s temporary custody for 12 or more months of a consecutive
22-month period, and SM cannot or should not be placed with either parent within a
reasonable time. The agency detailed certain circumstances in support of its motion, some
of which are summarized as follows.
GG and Family Home
{¶ 25} In or about December 2021, GG was ordered to appear for a truancy
hearing for the children. At the hearing, GG said SM missed school because SM was
11. sick; GG pled guilty to the charges and testified in court that sibling was out of control
and refused to do anything an adult told him to do. When GG got home from the hearing,
she informed sibling that he had to go to school because the court ordered her to ensure
he went to school, but sibling laughed, walked away and said he would rather be in DH6
than go to school. This caused GG to have a mental health crisis, so she was taken to the
local hospital’s psychiatric ward.
{¶ 26} On December 22, 2021, a caseworker visited the family home and found
excessive amounts of filth and grime in the kitchen - on the cabinets, floor and
refrigerator - and large amounts of food and garbage on the floor of the house.
Child Protective Services (“CPS”) and the Agency’s Involvement
{¶ 27} Mother has been involved with CPS7 since 2016, when she tested positive
for a street drug in January, while pregnant with SM, and in July, a physical abuse report
was made. In November 2017, while mother was incarcerated, there was a physical
abuse report and neglect concerns involving SM. GG was supposed to care for SM, but
she allowed a lady (“the lady”) to move into the family home to watch SM; the lady took
SM along when she bought “ICE,” and the lady fell asleep in the car overnight with SM
in the car. The lady also had SM around known drug users. SM had an unexplained bite
mark on her breast and a bruise on her arm; neglect was substantiated with the lady as the
6 There is no indication in the record what this is. 7 This occurred in Scioto County, Ohio.
12. perpetrator, and physical abuse was indicated by an unknown perpetrator. According to
the lady, her boyfriend was around SM and alone with SM for about 15 seconds. The
boyfriend commented that SM was spoiled and interrupted his alone time with the lady.
{¶ 28} In February 2018, it was reported that GG was hospitalized due to suicidal
statements. GG said the children were with mother, who GG believed was sober. GG
also said mother met a man online and was trying to transport him so he could live with
mother in the family home.
{¶ 29} In March 2021, a report was made regarding sibling missing school.
{¶ 30} In August 2021, the agency received a report of neglect and physical abuse
of the children. There were concerns with the condition of the house and the children did
not have their own beds.
{¶ 31} In September 2021, the agency received a neglect report regarding the
children, as emergency responders were at the family home where there was dog feces
throughout, the house smelled and the odor could be detected outside, and there was
clutter. The children stayed with relatives for three days until the house was free from
safety hazards. The family continued to work on cleaning the house, with supplies
provided by the agency, and the cleanliness issues were resolved.
{¶ 32} At the time of trial mother had an open case in Franklin County, Ohio,
concerning sibling as he sexually abused a child in his father’s home in August 2022.
Sibling had disclosed that he also sexually abused SM from the time she was born until a
few months before the children were removed from the family home.
13. Mother and Father’s Criminal Histories
{¶ 33} Mother has a criminal record. In February 2014, she was charged with
theft of an elderly or disabled adult and placed on probation. In September 2017, her
probation was revoked due to a violation, and she was sentenced to 12 months in prison.
In January and February 2019, she was charged with two separate counts of receiving
stolen goods; those cases were dismissed or settled.
{¶ 34} In May 2019, mother was charged with aggravated possession of drugs
(two counts), possession of criminal tools, and possession of drugs (two counts). She
pled to one count of aggravated possession of drugs, the remaining chargers were
dismissed and she was sentenced to 8 months incarceration.
{¶ 35} SM’s father also has a criminal record.
SM
{¶ 36} SM was developmentally, physically, cognitively and socially on target
according to records, although she struggled with basic self-care tasks and had a tendency
to be too trusting of strangers. SM had some behavioral issues, as reported by sibling’s
father during two weekend visits, she had inappropriate conversations and she was
defiant and isolated herself after visits with mother.
Case Plan Progress
{¶ 37} Mother showed insufficient improvement with respect to: her illicit
substance use, as she continued to test positive for drugs despite treatment; her living
environment, as there were still bugs, and some areas of the house were cluttered and
14. filthy; and, her mental health, as she had attended counseling sessions and IOP, but was
often late or was a no call-no show, and she refused to attend inpatient treatment.
Case Plan/Semi-Annual Review Report/GAL Report
{¶ 38} On June 9, 2023, a case plan was filed with one concern, that SM was in
need of permanent placement through adoption.
{¶ 39} On August 1, 2023, the agency filed its semi-annual administrative review
report which set forth the same two concerns with mother as set forth in the previous
report: household environmental hazards; and, mother’s substance abuse.
{¶ 40} On August 21, 2023, the GAL filed a report for the upcoming trial, which
included the following: SM completed kindergarten with almost all outstanding marks;
SM only missed school due to her oral surgeries; SM played T-ball and was one of the
best hitters on the team; mother lived in the same house with the same people; the GAL’s
last home visit was July 12, 2023, and she was met on the porch by MG’s fiancé who said
mother was not there; MG then came out of the house and reported that mother had
telemedical visits with the psychiatrist, but was not involved with inpatient chemical
dependency treatment or IOP; MG said they were looking for different housing but could
not afford anything; the car was impounded because MG drove it without having a
license; thereafter, the GAL went back to her car to write notes, and saw mother and her
boyfriend come out of the house, thus mother was there the entire time; the social worker
went to the house three times in July to meet with mother but was unsuccessful; the social
worker knew of no negative drug tests for mother in 2023; mother’s visits with SM went
15. well; and, SM expressed that she would be sad if she could no longer visit mother, but
SM acknowledged some of the safety issues at mother’s house like the cockroaches,
which made SM itch, mother’s inability to afford to get the cats fixed, so the cats kept
having kittens, and mother could not afford to buy SM a tablet. The GAL recommended
that SM be placed in the permanent custody of the agency, and SM continue with mental
health services as long as the counselor deems it necessary.
{¶ 41} On September 11, 2023, the permanent custody trial was held; mother
attended but SM’s father did not. On September 20, 2023, the juvenile court issued its
judgment entry granting permanent custody of SM to the agency. Mother appealed.
Permanent Custody Law
{¶ 42} R.C. 2151.353 provides in relevant part:
(A) If a child is adjudicated an abused, neglected, or dependent child, the
court may make any of the following orders of disposition:
***
(4) Commit the child to the permanent custody of a public children services
agency * * * if the court determines in accordance with division (E) of
section 2151.414 of the Revised Code that the child cannot be placed with
one of the child’s parents within a reasonable time or should not be placed
with either parent and determines in accordance with division (D)(1) of
section 2151.414 of the Revised Code that the permanent commitment is in
the best interest of the child.
16. {¶ 43} The juvenile court may grant permanent custody of a child to a children
services agency if the court finds, by clear and convincing evidence, two statutory
prongs: (1) the existence of at least one of the four factors set forth in R.C.
2151.414(B)(1)(a) through (e); and (2) the child’s best interest is served by granting
permanent custody to the agency. In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-
4857, ¶ 12. Clear and convincing evidence requires proof which “produce[s] 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.
First Prong
{¶ 44} The relevant provisions of R.C. 2151.414(B)(1) state:
[T]he court may grant permanent custody of a child to a movant if the court
determines * * * 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 * * * for [12] or
more months of a consecutive [22]-month period * * *, 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.
17. ***
(d) The child has been in the temporary custody of one or more public
children services agencies * * * for [12] or more months of a consecutive
[22]-month period, or the child has been in the temporary custody of one or
more public children services agencies * * * for [12] or more months of a
consecutive [22]-month period * * *.8
{¶ 45} When calculating “12 of 22” time, the operative ending date is when the
agency’s motion for permanent custody was filed. In re A.C., 9th Dist. Summit No.
23090, 2006-Ohio-3337, ¶ 11-12, citing In re C.W., 104 Ohio St.3d 163, 818 N.E.2d
1176, 2004-Ohio-6411, ¶ 24 (“‘[A] motion for permanent custody must allege grounds
that currently exist.’ In re K.G., [9th Dist. Wayne No. 03CA0066,] 2004-Ohio-1421[,] *
* * ¶ 13. A juvenile court lacks authority to grant an agency’s motion [on “12 of 22”]
grounds if those grounds were not satisfied when the motion was filed.”).
{¶ 46} R.C. 2151.414(E) sets forth the elements necessary to satisfy a
determination under R.C. 2151.414(B)(1)(a), that the child cannot or should not be placed
with either parent within a reasonable time. See In re Schaefer, 111 Ohio St.3d 498,
8 The “12 of 22” provision is found in both R.C. 2151.414(B)(1)(d) and R.C. 2151.413(D)(1), and the agency set forth the latter statute as one of the bases under which it sought permanent custody of SM.
18. 2006-Ohio-5513, 857 N.E.2d 532, ¶ 38. The relevant provision of R.C. 2151.414(E)(2)9
states:
In determining at a hearing * * * whether a child cannot be placed with
either parent within a reasonable period of time or should not be placed
with the parents, the court shall consider all relevant evidence. If the court
determines, by clear and convincing evidence, at a hearing held * * * that
one or more of the following exist as to each of the child’s parents, the
court shall enter a finding that the child cannot be placed with either parent
within a reasonable time or should not be placed with either parent:
(2) Chronic * * * chemical dependency of the parent that is so severe that it
makes the parent unable to provide an adequate permanent home for the
child at the present time and, as anticipated, within one year after the court
holds the hearing pursuant to division (A) of this section * * *[.]
Second Prong
{¶ 47} This prong concerns the best interest of the child, and when the juvenile
court is making this determination, R.C. 2151.414(D)(1) provides that all factors which
are relevant shall be considered by the court, including, but not limited to:
We note the court cited to R.C. 2151.414(B)(2), but the court’s language tracks 9
R.C. 2151.414(E)(2). Thus, it appears that the court’s citation is a typographical error.
19. (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 * * *;
(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.
Permanent Custody Trial
{¶ 48} Four witnesses were called to testify; their testimony is summarized below.
Joseph Asberry
{¶ 49} Mr. Asberry testified he is an ongoing caseworker for the agency, assigned
to SM’s family in February 2022. The children had already been removed from mother’s
house and placed together in a foster home. A case plan with reunification as the goal
was established for mother to address her substance abuse and the children’s failure to
attend school, and services outlined for mother were a mental health assessment and
parenting classes. She underwent an assessment; mental health counseling and substance
abuse treatment were recommended.
20. {¶ 50} Asberry visited mother at the family home, and initially, the house was
pretty dirty, there were a lot of bugs, and there was a strong foul odor from trash and
animal excrement. Also, there was clutter throughout the house, with stuff stacked up
high, and occasionally there was trash piled up outside of the house. Mother lived at the
house with three other relatives. During the case, progress was made cleaning and
decluttering the house, but there was still a foul odor, there were a lot of bugs, including
cockroaches, on the ceilings, kitchen counters and crawling on the walls, and flies in the
trash. At one visit, Asberry noticed a gaping hole in the bathroom floor; that hole was
repaired.
{¶ 51} The agency provided mother with applications for medical assistance, food
and cash, as well as PRC,10 so she could get financial help, but she never completed the
applications. For the entirety of the case, mother had no job and no driver’s license.
{¶ 52} Mother’s supervised visit with SM went well, they were happy to visit each
other and had a bond. At the weekly visits, which lasted two hours, mother and SM
played games, ate, talked and caught up with each other.
{¶ 53} Regarding case plan services, mother attended parenting classes in which
she was pretty engaged and seemed to learn about enforcing rules and setting boundaries
around the house; she successfully completed parenting classes. She also attended
10 PRC paid for visitations, parenting classes and other services. Without a completed application, the parent had to self-pay for the services.
21. counseling and substance abuse treatment, and although she was often late, she was
pretty active and engaged during sessions.
{¶ 54} In or about February 2023, Asberry and the GAL suggested that mother go
for more intensive drug treatment because she still tested positive for high levels of meth,
but mother did not see the need. In or about June 2023, mother was advised by her
counselor to seek inpatient treatment, but mother was not willing to go. About 15 drug
tests were given to mother, and the results were positive for THC, amphet and high levels
of meth.
{¶ 55} On August 18, 2023, at an unannounced visit, mother was drug-tested and
the results were positive for meth, amphet and THC. She said she was taking Wellbutrin
which may cause her to test positive for meth, but Asberry learned that was not possible.
At the time of trial, mother was going to a doctor for Wellbutrin but was not participating
in any drug counseling or treatment, as the facility where she went closed a few months
earlier, so she was looking for a new facility. Asberry told mother to call him if she
needed help finding a new facility or needed a referral, but mother never called.
{¶ 56} Asberry saw SM’s father one time, at a virtual court hearing. When
Asberry was looking for permanency options for SM, he left voicemails for father and
sent a letter, but received no response. Asberry contacted father’s mother, PK, for a
possible placement for SM, as SM was pretty familiar with PK. A home study was
conducted and PK was approved. Asberry called PK, over a four-month period, to
22. arrange visits between PK and SM, but PK ceased answering calls and never responded
to Asberry.
{¶ 57} Mother suggested the relatives with whom she lived as possible placements
for SM, but the agency did not think they were suitable caregivers for SM given they all
lived in the dirty, cluttered house before the agency became involved, and they failed to
intervene to clean or declutter the house or get the children to school.
{¶ 58} During the case plan, Asberry had contact with SM every month and noted
that she made progress. SM attended counseling on a regular basis to deal with her
separation from mother, and SM started trauma therapy and grief counseling, as SM was
diagnosed with PTSD. After SM was placed in the second foster home, her dental issues
were addressed - she had multiple teeth filled, capped or pulled. SM had to be placed in
the second foster home because her first foster parents were no longer fostering children.
SM was pretty bonded with her second foster family, and they wanted to adopt her.
{¶ 59} At the time of trial, SM had been out of the family home for about a year
and nine months, and she still had a bond with mother. SM expressed she would like to
live with mother, or at least continue to see her mother. Asberry noted that sibling was in
a residential treatment facility in Franklin County, Ohio
{¶ 60} Mother indicated to Asberry, for quite a few months, that she wanted to get
her own place. She was recently approved for $800 per month for housing and was on a
waiting list for an apartment for a month or so, she said. Asberry observed this was the
first real step that mother had taken which demonstrated she was getting her own place.
23. Troy de Hagen
{¶ 61} Mr. de Hagen testified he was a certifying scientist for Forensic Fluids
Laboratories (“FFL”), located in Michigan. He earned bachelor’s of science degrees in
biochemistry and biomedical science, a bachelor’s of arts degree in philosophy, and a
master’s degree in chemistry. In 2022, he became certified by the National Registry of
Certified Chemists as toxicological chemist.
{¶ 62} The procedure for receiving and processing drug screens at FFL was
described by de Hagen, which included chain of custody paperwork with prescribed
medications listed for the donor. If a drug screen was negative, a negative report would
be generated. If a drug screen was positive, it was considered a presumed positive and
the screen would be submitted for secondary, confirmation testing. If that screen was
confirmed positive, the concentration of the drug was quantified and a report was
generated. The types of machines and maintenance of the machinery at FFL, as well as
proficiency testing for the machines, was discussed by de Hagen.
{¶ 63} With respect to mother’s August 18, 2023 drug screen which was positive
for meth, de Hagen testified that Wellbutrin would not cause a false positive for meth
because the drugs have uniquely different chemical structures. Moreover, the drug screen
was tested to detect a class of compounds, which would include meth but not Wellbutrin.
This same reasoning also applied to the positive test results for amphet and THC.
24. Mary Ann Lamb
{¶ 64} Ms. Lamb testified she was the court-appointed GAL for SM, and she met
with SM once a month throughout the case at the two foster homes. SM was energetic
and social, she liked school, people, sports, playing on the swings and riding her bike, she
enjoyed visits with mother, she got along well with her foster brothers, she loved to show
Lamb her room and the foster home, and she seemed to really enjoy the family setting at
her foster home, which was located in a nice neighborhood.
{¶ 65} While at the foster homes, SM did really well in school, her attendance was
very good and she only missed school when she had dental surgeries and an occasional
cold. SM’s health was good and her relationships in the foster homes were good. The
social media and entertainment which SM viewed had changed, as it was monitored at
the foster homes, so SM does not refer to inappropriate programs and concepts.
{¶ 66} Lamb observed three supervised visits between SM and mother, where they
would color or play games and SM would always play on mother’s phone. Mother
brought food to the visits. Lamb believed mother and SM were bonded.
{¶ 67} Lamb saw mother for visits, announced and unannounced, at the family
home; in 2022, there were six visits, and in 2023, three visits. Lamb observed that
everyone in the home really struggled to keep it tidy and uncluttered and there were a lot
of bugs. The first few times Lamb was in the family home, she was not able to go into
mother’s bedroom, but Lamb insisted on seeing it. Mother’s bedroom smelled like
25. marijuana, her bed just had a bare, dirty mattress with dirty blankets, and there was a
toddler bed for SM with stuff on it so it could not be used as a bed.
{¶ 68} Mother’s aunt and her fiancé were at the family house three times when
Lamb visited, but Lamb was unable to see their bedroom as the door was locked. Lamb
was told when SM lived at the house, SM slept in that bedroom. Lamb also saw at the
house: MG, who lived in the house; MG’s fiancé; and, mother’s (at one time) fiancé.
MG said she received $800 a month from social security and she was trying to find a
place of her own, and have mother and the children live there, but MG could not find a
four-bedroom residence for $800/month.
{¶ 69} Lamb described the dynamics between mother and the other household
members as strange. Mother saw herself as in charge, and kind of dominated the
household, but in reality, since it was not her home, she did not have authority over it.
For example, several times when Lamb was visiting, mother saw a bug on the floor and
told MG to “take care of your friend over here,” and MG got rid of the bug. Lamb
remarked that mother “doesn’t take authority to really, to have a household of her own so
she can really * * * give a healthy environment for the kids.”
{¶ 70} The month before trial, 19 months into the case, mother received a voucher
for housing, she inquired about an apartment and was told there was a month’s wait.
{¶ 71} Lamb’s last visit at the family home was September 8, 2023, and in the
kitchen, she counted about a dozen cockroaches and saw many flies and ants around the
animals’ dishes. The house definitely had a smell of urine, grease and things that were
26. absorbed over time - it was not a pleasant smell. There were cats in the house and a dog.
Lamb noticed the outside of the house had improved as the garbage was picked up.
{¶ 72} With respect to employment, mother did not want to leave the house to
work due to her social anxiety, and she did not want to be around people. She tried jobs
through the internet, but she did not obtain a job with sufficient income for herself, let
alone her children. Lamb did not know of any job mother had at the time of trial.
{¶ 73} At some point in time, mother mentioned to Lamb that she was taking
some medical coding classes, but Lamb did not know where mother was in the process.
{¶ 74} Concerning counseling, mother had not been involved in substance abuse
counseling since before July 2023, which was troubling to Lamb since mother had not
submitted a negative drug screen in 2023, and all screens were positive for meth.
{¶ 75} Lamb observed that mother participated in nine out of thirteen parenting
classes, which qualified as completing the classes.
{¶ 76} Lamb never met SM’s father and had no identifying contact information for
him.
{¶ 77} Lamb authored a report, filed August 21, 2023, in which she recommended
that it was in SM’s best interest for permanent custody to be awarded to the agency.
Lamb did not believe SM could safely be placed with mother due to her drug use and the
state of the family home. Although SM wanted to live with mother, Lamb opined it was
in SM’s long-term best interest to be placed in the permanent custody of the agency, and
be adopted by her foster parents. Lamb thought SM was resilient. Lamb noted the
27. change from the first foster home to the second was difficult for SM, as SM had
nightmares about drowning and people dying, which was why the foster parents sought
counseling for SM. However, Lamb did not hear, in the past four or five months, that
SM had nightmares. Other topics discussed in counseling included SM’s relationship
with her foster parents and SM’s feelings about coming back and forth from visits with
mother.
Foster Parent
{¶ 78} SM’s foster mom, KD, testified that SM had lived in her home since
December 2022, and the household also included KD’s husband, whom she married in
2012, and their two sons, six and four. They lived in a three-bedroom ranch home where
SM has her own bedroom. KD worked for children services in Lorain County, Ohio, as a
direct services caseworker, and her husband was a stay-at-home dad.
{¶ 79} When SM entered the home, she had poor eyesight, her teeth were in very
bad condition, she was very friendly but also very friendly to strangers, which showed
she did not quite understand boundaries, and her emotions fluctuated but she was pretty
good at expressing how she felt. KD signed up SM for counseling, and KD scheduled a
vision appointment for SM, and SM got glasses.
{¶ 80} In February 2023, SM was able to have her dental surgery and had five
teeth extracted, five teeth capped and a couple of fillings. Thereafter, SM could eat
anything. Before surgery, SM struggled to eat, as it was painful when she chewed.
28. {¶ 81} KD described SM as very smart and noted that when SM started
kindergarten, the teacher expressed how intelligent SM was and that she was one of the
best students in class. SM’s report card was always outstanding and the school always
indicated how pleasant SM was to be around.
{¶ 82} KD enrolled SM in a dance and martial arts program, and SM tried dance,
kung fu and gymnastics in the wintertime. In the spring and summer, SM was in
baseball.
{¶ 83} Over the winter, KD thought SM struggled with divided loyalties and felt
she had to choose between her foster family and mother. However, with counseling and
help from KD and her husband, who told SM repeatedly that it was ok for her to love
more than one person and it was ok for her to have lots of love in her life, KD noticed a
change in SM during the summer such that SM was not angry or anxious. KD said SM
did not act out, and described SM’s demeanor as positive and excited about everything
going on. KD noted SM was in touch with her feelings and expressed she felt sad when
it was discussed that she may not go back to mother, but SM also expressed hope that she
would be ok. KD thought SM processed everything as well as a 7-year-old could.
{¶ 84} KD and her husband would like to adopt SM if she could not return home
to mother, and they would like to explore how SM could stay in contact with mother and
her family, as SM loved them.
29. {¶ 85} KD’s contact with mother was positive and appropriate, before and after
mother’s visits with SM, and at SM’s T-ball practice. KD had no contact with SM’s
father.
Exhibits
{¶ 86} The agency offered into evidence two exhibits, with no objections: Exhibit
A - drug test results from August 18, 2023 drug screen; and, Exhibit B - GAL report filed
on August 21, 2023.
Juvenile Court’s Judgment
First Prong of Permanent Custody Analysis
{¶ 87} The court found, by clear and convincing evidence, R.C. 2151.414(B)(1)(a)
applied, that SM cannot or should not be placed with either of her parents within a
reasonable time, as mother’s chemical dependency was so severe that she was unable to
provide SM with an adequate permanent home currently, and within the next year.11 The
court set forth: mother submitted about 15 drug screens, all of which were positive for
meth, including a drug screen given in August 2023; mother’s counselor recommended
that she go to inpatient treatment, but mother refused; mother was not participating in any
treatment; she remained unemployed; and, she continued to reside in the same home with
three other adults, where some improvements were made, but foul odors and clutter
remained. The court also noted that mother completed parenting classes.
11 Again, the court cited to R.C. 2151.414(B)(2), which appears to be a typographical error for R.C. 2151.414(E)(2).
30. {¶ 88} The court further found, pursuant to R.C. 2151.414(B)(1)(d), that SM had
been in the temporary custody of the agency for nearly 17 consecutive months when the
agency filed its motion for permanent custody.
Second Prong of Permanent Custody Analysis
{¶ 89} As to the child’s best interest, the court considered the relevant factors in
R.C. 2151.414(D)(1)(a) through (e) in reaching its determination, and made findings
based on clear and convincing evidence in the record.
{¶ 90} Regarding (D)(1)(a), the court considered SM’s interactions and
relationships with mother and others, and found: SM was bonded with her foster family,
which included foster mom and dad and two children; SM was bonded with mother;
mother’s visits with SM were mainly supervised and were appropriate; and, SM’s father
did not participate at trial and his position about the pending motion was unknown.
{¶ 91} With respect to (D)(1)(b), the court considered SM’s wishes and found that
SM expressed a desire to return to mother’s home, or at least continue to see her, and
foster mom indicated a willingness for SM to continue to have contact with mother, if
foster mom and dad adopted SM. The court further found that the GAL recognized the
sadness SM would experience if mother’s parental rights were terminated, but the GAL
believed the best result for SM long-term would be for her to be placed in the agency’s
permanent custody, as that was in SM’s best interest.
{¶ 92} Regarding (D)(1)(c), the court considered SM’s custodial history and
found: SM was placed in GG’s legal custody in 2018, when mother was in prison; after
31. mother was released from prison, she returned to the family home; SM was removed
from the home in January 2022; mother was a part of the circumstances and environment
which led to the agency’s involvement and the finding that SM was dependent; and, SM
had been in the temporary custody of the agency for nearly 20 consecutive months at the
time of trial.
{¶ 93} With respect to (D)(1)(d), the court considered SM’s need for a legally
secure permanent placement and whether that could be achieved without a grant of
permanent custody to the agency, and found: the case will “sunset in 4 months” and
mother still used meth and was not in treatment; SM thrived in her foster home; foster
mom arranged for dental and optical care for SM, and enrolled her in mental health
treatment to address the distress from being removed from home; SM was excelling in
school, exhibited good behavior and her attendance dramatically improved; SM was
involved in dance, martial arts and baseball; SM was able to meaningfully express her
feelings to her foster mom; and, foster mom and dad would like to adopt SM.
{¶ 94} With respect to (D)(1)(e), the court found that none of the factors in R.C.
2151.414 (E)(7) to (11) applied.
{¶ 95} The court found the agency made reasonable efforts to finalize SM’s
permanency plan through supportive services, and the agency made reasonable efforts to:
prevent or eliminate the need for SM’s removal from the home; eliminate SM’s
continued removal from the home; make it possible for SM to return home safely; or,
place SM in a timely manner in accordance with the case plan in the record.
32. {¶ 96} The court ordered that SM be placed in the permanent custody of the
agency, and further ordered that an adoption plan be implemented for SM.
Assignment of Error
{¶ 97} Mother argues that the trial court’s decision to terminate her parental rights
and responsibilities was not supported by clear and convincing evidence, and was against
the manifest weight of evidence presented at trial.
{¶ 98} With respect to the court’s finding under R.C. 2151.414(E)(2), mother
submits that she admitted to her substance abuse and addiction, and she frequently sought
treatment. She asserts the agency failed to show, by clear and convincing evidence, that
she would not be able to provide an adequate home for SM within one year.
{¶ 99} Mother contends that of the 15 drug screens referenced by the court, only
one positive drug screen was submitted into evidence. She further claims the agency
failed to demonstrate that, due to her not completing substance abuse counseling, she was
not capable of caring for the children, as no testimony was presented to indicate that any
of her substance abuse issues (that she may or may not currently have) would affect SM
and prevent SM from being returned home. Mother argues the agency simply presumed
that since she failed to complete substance abuse counseling, she was chemically
dependent and unable to care for SM. Mother insists no testimony was presented that she
had ever been high or appeared to be under the influence during any meeting, visit or
other event.
33. {¶ 100} Mother observes that caseworker Asberry testified that she had taken
steps to obtain her own housing, but he discounted this as only “the first real step that’s
demonstrated her getting her own place.” Mother submits the court was presented with
testimony that she had taken steps to secure safe and stable housing for herself and SM,
thus, the evidence was not clear and convincing that, due to mother’s chemical
dependence, she would not be able to provide an adequate home for SM within one year
of the date of the trial.
Best Interest Factors
{¶ 101} Mother argues the agency failed to meet its burden to prove, by clear and
convincing evidence, that it was in SM’s best interests to be placed in the agency’s
permanent custody. Mother notes the court acknowledged that SM was well bonded with
mother, visits were appropriate, and SM expressed a desire to return to mother’s home or
have the ability to continue to see mother. Mother further notes that foster mom testified
SM directly told foster mom that she would like to be returned to mother’s care, SM
often expressed that she missed mother, and SM talked about other members of the
family. Mother also observes that the GAL testified if SM got to choose, she wanted to
reside with mother, and the GAL had a concern that the severance of mother’s parental
rights would have a negative impact on SM.
{¶ 102} Mother asserts the trial court appeared to only balance its best interest
decision on a comparison of the foster family to mother’s assumed life, and the court
even said that none of the R.C. 2151.414(E)(7) - (11) factors applied. Mother does not
34. dispute that SM has improved while with the foster family, but argues that it is not
enough to simply show one is better than the other when it comes to the permanent
termination of parental rights and responsibilities.
{¶ 103} Mother offers other best interest factors which should have been
considered and given their fair weight, like her bond with SM, SM’s wishes, and the
foster mom’s testimony about SM and mother’s interactions. Mother also notes she
continued to visit with SM.
{¶ 104} The agency counters that the juvenile court’s finding, by clear and
convincing evidence, was not against the manifest weight of the evidence, and the court’s
award of permanent custody is reviewed for an abuse of discretion.
{¶ 105} The agency notes that the family home was dirty, had bugs, animal urine
and feces, and smelled, and continued to have a lot of bugs on the ceiling, walls and
counters, and still had a foul odor. The agency observes that mother was unemployed
throughout the case, and although inpatient treatment was recommended, she was not
willing to follow through. The agency asserts there were no suitable relative placements
for SM, as mother’s relatives who lived in the family home could have intervened on
SM’s behalf by getting SM to school, seeking dental care for SM and cleaning the house.
{¶ 106} The agency further argues the juvenile court considered all of the factors
in R.C. 2151.414(D)(1), and found, by clear and convincing evidence, that placing SM in
the permanent custody of the agency would be in her best interest, and the foster parents
expressed the desire to adopt SM.
35. Standard of Review
{¶ 107} Mother sets forth the standard of review is manifest weight of the
evidence, while the agency refers to two standards of review: manifest weight and abuse
of discretion.
{¶ 108} A review of the law shows that in In re Z.C., Slip Opinion No. 2023-
Ohio-4703, ¶ 1, the Supreme Court of Ohio held that “the proper appellate standards of
review to apply in cases involving a juvenile court’s decision under R.C. 2151.414 to
award permanent custody of a child and to terminate parental rights * * * are the
sufficiency-of-the-evidence and/or manifest-weight-of-the-evidence standards.” The
appropriate standard to apply depends on the nature of the arguments presented by the
parties. Id. at ¶ 11.
Standards Defined
{¶ 109} Sufficiency of the evidence is a test of adequacy. State v. Thompkins, 78
Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Whether the evidence is legally sufficient
to sustain a verdict is a question of law.’” Id.
{¶ 110} Manifest weight of the evidence “‘depends on [the evidence’s] effect in
inducing belief.’” (Emphasis deleted.) Thompkins at 387, quoting Black’s Law
Dictionary 1594 (6th Ed.1990). When reviewing for manifest weight, the appellate court
weighs the evidence and all reasonable inferences, considers the witnesses’ credibility
and decides whether, in resolving evidentiary conflicts, the judge lost his way and created
a manifest miscarriage of justice such that the judgment must be reversed and a new trial
36. ordered. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶
20.
Analysis
{¶ 111} At the outset, we note that mother did not set forth any arguments
regarding the juvenile court’s finding that R.C. 2151.414(B)(1)(d), the “12 out of 22”
provision, applied. As such, we are not required to review this finding; however, we
choose to examine it, applying the sufficiency of the evidence standard.
{¶ 112} We note the basis for a finding that R.C. 2151.414(B)(1)(d) applies is that
“[t]he child has been in the temporary custody of one or more public children services
agencies * * * for [12] or more months of a consecutive [22]-month period[.]” As set
forth above, a motion for permanent custody must allege grounds which existed at the
time the motion was filed.
{¶ 113} Here, the record shows that the agency was granted temporary custody of
SM on January 20, 2022, and the motion for permanent custody was filed on June 7,
2023; that period of time was not 22 months, so the agency had no basis to move for
permanent custody of SM under the “12 out of 22” provision. We therefore find the
juvenile court’s ruling that the “12 out of 22” provision applied is not supported by
sufficient evidence.
{¶ 114} With respect to mother’s arguments concerning the juvenile court’s
decision that R.C. 2151.414(B)(1)(a) applied, and that SM could not and should not be
37. placed with either parent within a reasonable time, we find the nature of her arguments
are such that the manifest weight of the evidence standard applies.
{¶ 115} Upon review of the juvenile court’s judgment entry, the court summarized
the facts and evidence presented and indicated the factors it considered in reaching its
decision to grant permanent custody of SM to the agency, thereby terminating mother and
father’s parental rights to SM. Based on our review of the entire record, we find this is
not the exceptional case in which the trier of fact clearly lost his way and created a
manifest miscarriage of justice by finding permanent custody was in SM’s best interest.
{¶ 116} The record shows the agency removed SM and sibling from the family
home because the children were not attending school. This was despite their legal
guardian, mother and several other adults living in the three-bedroom home. While
conducting visits at the home, caseworker Asberry and the GAL were concerned with the
unsanitary, bug-infested house which was also cluttered and had a foul smell.
{¶ 117} The record further shows that in spite of the services offered by the
agency to assist mother in remedying the issues which caused SM’s removal and
continued removal from the home, mother failed to make significant progress in those
services.
{¶ 118} Throughout the case, mother occasionally complied with some case plan
goals but ultimately, the only case plan services that she successfully completed was the
parenting program. Mother also consistently visited with SM and the visits went well.
However, mother failed to follow and comply with the recommended mental health and
38. substance abuse treatment plans, as she did not consistently attend counseling sessions,
she refused to go for inpatient treatment, and her drug screens were all positive, and
almost all of mother’s screens were positive for meth. The record shows that prior to this
case, mother went to prison for aggravated possession of drugs.
{¶ 119} Further, during the case, mother failed to keep the house clean and
uncluttered, as the house was still infested with bugs and it smelled, and she never had a
job which could sustain her, much less the children. In addition, we note that mother
never had a driver’s license, she never filled out paperwork to receive financial
assistance, and until right before trial, she had never taken steps to secure housing of her
own.
{¶ 120} After SM was removed from the family home and placed into foster care,
she received much-needed dental care, she was prescribed glasses, she attended school
regularly and received very good report cards. In her foster homes, SM lived in safe,
sanitary environments with foster parents who ensured her physical and emotional needs
were met. SM thrived in foster care, and was bonded with her current foster family, and
still loved her first foster family. SM also loved and was bonded with mother.
{¶ 121} In her current foster home, SM had the opportunity to play sports and
participate in dance, kung fu and gymnastics. SM’s current foster parents recognized
SM’s desire to maintain a relationship with mother and relatives, and if they adopt SM,
they would explore how SM could stay in contact with mother and relatives.
39. {¶ 122} SM wished to return to mother’s home, but the GAL opined in her last
report that permanent custody was in SM’s best interest. We note in each of the reports
filed by the GAL, she detailed her visits with mother and with SM, and set forth a
comprehensive description of the events which occurred, or had not occurred, with
mother and SM at particular times throughout the case. The GAL also indicated that she
never met SM’s father and had no identifying contact information for him.
{¶ 123} The record reveals that SM’s father had no contact with SM since she was
one year old, and he only participated in the case briefly, at the very beginning.
{¶ 124} For the reasons above, we conclude the juvenile court’s judgment that
pursuant to R.C 2151.414(B)(1)(a) and R.C. 2151.414(E)(2), SM cannot and should not
be placed with either parent within a reasonable period of time, and pursuant to RC.
2151.414(D)(1)(a) through (d), an award of permanent custody to the agency was in
SM’s best interest is not against the manifest weight of the evidence.
{¶ 125} We further conclude that while the juvenile court erred in finding,
pursuant to R.C. 2151.414(B)(1)(d), that SM had been in the temporary custody of the
agency for more than 12 months of a consecutive 22-month period, this error is harmless,
as there is an abundance of evidence in the record to support the court’s finding under
R.C. 2151.414(B)(1)(a).
{¶ 126} Accordingly, we find mother’s sole assignment of error not-well taken.
40. {¶ 127} On consideration whereof, the judgment of the Huron County Court of
Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Christine E. Mayle, J. ____________________________ JUDGE Gene A. Zmuda, J. ____________________________ Myron C. Duhart, J. JUDGE CONCUR. ____________________________ JUDGE
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41.
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