In re A.B. ( 2023 )

[Cite as In re A.B., 2023-Ohio-326.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: A.B. & A.B. :
:
: C.A. No. 29598
:
: Trial Court Case No. G-2018-006197-
: 0F,0L; G-2018-006198,0H,0M
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
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OPINION
Rendered on February 3, 2023
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MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
MISTY M. CONNORS, Attorney for Appellant
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EPLEY, J.
{¶ 1} The biological mother (“Mother”) of A.B.1 and A.B.2 appeals from a judgment
of the Montgomery County Court of Common Pleas, Juvenile Division, that awarded
permanent custody of A.B.1 and A.B.2 to Montgomery County Children Services
(“MCCS”). For the reasons that follow, the judgment of the trial court will be affirmed.
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I. Facts and Procedural History
{¶ 2} A.B.1 and A.B.2 were born to Mother and Father (who is not a party to this
appeal) in October 2016 and October 2017, respectively. At the time this case began, the
children (along with two older siblings – L.J. and D.J.) were in the care and custody of
Mother.
{¶ 3} MCCS became involved with A.B.1 and A.B.2 in late 2018 after receiving a
referral that Mother had failed to take A.B.2 to follow-up medical appointments after the
boy had surgery. A few months later, another referral was made, again alleging medical
neglect, and also raising concerns about housing stability. In January 2019, MCCS was
granted temporary custody of A.B.2, and by March 2019, temporary custody of A.B.1 was
granted to MCCS. At that time, the older children were removed from Mother’s care and
placed with foster families as well.
{¶ 4} A case plan was created to facilitate reunification and had the following
objectives: (1) obtain stable housing; (2) maintain a stable income; (3) complete a mental
health assessment; (4) complete “batterer’s intervention;” (5) sign releases of information;
(6) complete visitation with the children; (7) submit to a parenting evaluation and follow
any recommendations; and (8) submit to a psychological evaluation and follow any
recommendations. Despite Mother’s compliance and progress with the reunification plan,
on December 18, 2020, MCCS filed for permanent custody of A.B.1, A.B.2, and D.J. It
did, however, file a motion for the reunification of Mother and L.J.
{¶ 5} The permanent custody hearing was held on November 9, 2021. During the
proceeding, the magistrate heard testimony from Kerri A., the foster mother of A.B.1 and
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A.B.2, Dr. Richard Bromberg, a clinical psychologist who interviewed Mother, Nakeyia
Allen, the family’s case worker, and Mother. On December 17, 2021, after considering
the witness testimony (no exhibits were presented), the magistrate granted permanent
custody of A.B.1 and A.B.2 to MCCS and terminated Mother’s parental rights. L.J. and
D.J. were reunited with Mother.
{¶ 6} Mother filed objections to the magistrate’s decision on January 3, 2022 and
supplemental objections on July 14, 2022. The trial court overruled the objections on
August 26, 2022, finding by clear and convincing evidence that A.B.1 and A.B.2 had been
in the temporary custody of MCCS for 12 or more months of a consecutive 22-month
period and that permanent custody was in the best interest of the children.
{¶ 7} Mother has filed a timely appeal.
II. The trial court did not abuse its discretion
{¶ 8} Mother raises a single assignment of error: the trial court abused its
discretion when it granted MCCS permanent custody of A.B.1 and A.B.2. We disagree.
{¶ 9} The United States Supreme Court has described a parent’s rights in the care,
custody, and control of her children as “perhaps the oldest of the fundamental liberty
interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054,
147 L.Ed.2d 49 (2000). This interest, however, is not absolute. “The state has broad
authority to intervene to protect children from abuse and neglect.” State ex rel. Allen Cty.
Children Servs. Bd. v. Mercer Cty. Common Pleas Court, Prob. Div., 150 Ohio St.3d 230,
2016-Ohio-7382, 81 N.E.3d 380, ¶ 58 (O’Connor, C.J., dissenting).
{¶ 10} Because awarding permanent custody is a “drastic remedy that involves the
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termination of parental rights, permanent custody determinations must be based upon
clear and convincing evidence.” (Citations omitted.) Id. “Clear and convincing” means
more than a preponderance, but less than “clear and unequivocal.” In re Rose, 2017-
Ohio-694, 85 N.E.3d 498, ¶ 19 (2d Dist.).
{¶ 11} R.C. 2151.414 sets forth a two-part analysis for courts to consider when
determining a motion for permanent custody to a public services agency. First, the trial
court must find by clear and convincing evidence that the child either (a) cannot or should
not be placed with the parent within a reasonable time; (b) is abandoned; (c) is orphaned
with no relatives able to take permanent custody; or (d) has been in the temporary custody
of a public or private children services agency for 12 or more months of a consecutive 22-
month period. In re I.W., 2d Dist. Clark No. 2019-CA-76, 2020-Ohio-1643, ¶ 20; R.C.
2151.414(B)(1).
{¶ 12} If the first prong is met, the court must then determine whether granting
permanent custody is in the best interest of the child. In re J.N., 2d Dist. Clark No. 2019-
CA-82, 2020-Ohio-4157, ¶ 26; R.C. 2151.414(B)(1). To help with this determination, R.C.
2151.414(D)(1) lists factors the court must consider:
(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 * * *;
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(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.
“No one element is given greater weight or heightened significance.” In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶ 13} Once a decision is made regarding permanent custody of a child, an
appellate court will not reverse absent an abuse of discretion. In re J.N. at ¶ 22. The term
“abuse of discretion” implies the court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). “[T]he discretion which a trial court enjoys in custody matters should be accorded
the utmost respect, given the nature of the proceeding and the impact the court’s
determination will have on the lives of the parties concerned.” Miller v. Miller, 37 Ohio
St.3d 71, 74, 523 N.E.2d 846 (1988). Because “[t]he knowledge a trial court gains through
observing the witnesses and the parties in a custody proceeding cannot be conveyed to
a reviewing court by a printed record[,] * * * the reviewing court in such proceedings should
be guided by the presumption that the trial court’s findings were indeed correct.” (Citations
omitted.) Id.{¶ 14} A.B.1 and A.B.2 had been in the custody of MCCS from March 8, 2019 until
the permanent custody motion was filed on December 18, 2020. This 21-month timeframe
was more than the requisite 12 months of a consecutive 22-month period set forth in R.C.
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2151.414(B)(1)(d). Trial Tr. at 113. The trial court’s analysis, therefore, focused only on
whether the grant of permanent custody to MCCS was in the best interest of A.B.1 and
A.B.2.
{¶ 15} When determining the best interest of the child, the court must consider all
relevant factors, including those found in R.C. 2151.414(D). The trial court found the first
factor particularly important – the interaction and interrelationship of the children with their
parents, relatives, foster parents, and any other person who may significantly affect the
child.
Interaction and interrelationships of the children
{¶ 16} The court first heard testimony from Kerri A. (“Kerri”), the foster mother of
A.B.1 and A.B.2. Kerri told the court that she had been the boys’ foster mother since
February 2021 and that they had made great progress in the nine or ten months they had
been together. Both boys, according to Kerri, were enrolled in Head Start and were
reaping the benefits. “They are learning by leaps and bounds in school. * * * Being in
school has really helped them tremendously.” Trial Tr. at 24. The children’s speech, which
had been a major issue, had also improved since being placed with Kerri. She testified
that “they don’t mumble jumble in their own special language anymore” and that there
had been a “[o]ne hundred percent improvement” in their time together. Trial Tr. at 29.
{¶ 17} Kerri also testified about the loving relationship she had developed with
A.B.1 and A.B.2. She stated that both boys were “smart,” “funny,” and “full of life” and
noted that their bond “shows in the face[s], their actions and just the way they are.” Trial
Tr. at 20. She further told the court that the boys were close with her extended family and
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that her family saw them as “part of the family.” Nakeyia Allen, Mother’s caseworker,
testified that the A.B.1 and A.B.2 were doing well in Kerri’s care, noting that from the time
A.B.1 had been with Kerri, “his speech has improved tremendously. * * * [H]e just always
appears to be happy and bonded with [Kerri].” Trial Tr. at 131-132.
{¶ 18} Despite the bond with the children, Kerri admitted two things. First, she
explained that while she loved A.B.1 and A.B.2, she was unsure if she was ready to adopt
them. “I love them, and they love me. I mean, it’s just – this is a hard decision going into.
I didn’t realize going into foster care that this is something that, uh, would come up so
fast.” Trial Tr. at 23. Kerri also acknowledged that the boys were bonded with their mother,
testifying, “Every little thing that she gives them, they bring it home, and they act like she’s
[given] them a million dollars, and it’s a simple washcloth from the dollar store. They carry
it around until they go to bed.” Trial Tr. at 20-21. She also noted that they talk about their
older brother D.J. all the time.
{¶ 19} Notwithstanding the bond that A.B.1 and A.B.2 had with Mother and their
older brother, there was troubling testimony regarding the interaction and interrelationship
of the children with the older siblings that could have significantly affected them in a
negative way. Allen, Mother’s caseworker, disclosed that there had been allegations
(which were later confirmed) that L.J. had inappropriately touched other children,
including his brother, D.J. In fact, he had been removed from one foster home due to
reports that he “sexually touched the son of the foster parent.” Trial Tr. at 114. D.J., too,
had been removed from a foster home after allegations that he “perp’d” on a five-year-old
in the household.
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{¶ 20} In light of L.J.’s and D.J.’s sexual abuse history, the court (along with MCCS
and the guardian ad litem) expressed concern about Mother’s housing plan. According to
trial testimony, Mother resided in a two-bedroom apartment. If reunited with all four
children, Mother planned to give L.J. his own room, and have D.J., A.B.1, and A.B.2 all
sleep in a room with her. Mother also testified that she had given L.J. and D.J. boundaries
as to where they could and could not go in the apartment and that they had been told they
could not be left alone with A.B.1 and A.B.2. She had had several cameras installed in
the home to protect the children from each other, but there were no cameras set up in
L.J.’s room. MCCS feared that, due to their ages and speech limitations, A.B.1 and A.B.2
would be susceptible to abuse by their older brothers. The trial court noted that it doubted
Mother could “effectively parent all her children long-term if she must also simultaneously
protect them from one another.” Entry at 10. While giving L.J. his own room was a strategy
for sexual abuse mitigation, D.J. had also been accused of sexual abuse and would have
been in the same room as A.B.1 and A.B.2. The trial court concluded that the interaction
and interrelationship of the children with their parents, siblings, relatives, foster
caregivers, and out-of-home providers weighed in favor of granting permanent custody to
MCCS.
Need for a legally secure permanent placement
{¶ 21} The trial court was also concerned about the children’s need for a legally
secure permanent placement and whether that could be achieved without a grant of
permanent custody to MCCS. Dr. Richard Bromberg, an expert in clinical psychology,
testified that he met with Mother in December 2020 to do a clinical interview and
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psychological testing. Dr. Bromberg diagnosed Mother with (1) mood disorder (disruptive
mood dysregulation disorder); (2) personality disorder; (3) substance abuse disorder; and
(4) “a pretty debilitating anxiety disorder, [with] a pretty classic case of panic disorder with
agoraphobia.” Trial Tr. at 71-72. He opined that all of these diagnoses would make it very
challenging to raise A.B.1 and A.B.2, let alone all four children at once.
{¶ 22} Dr. Bromberg also administered a Child Abuse Potential Inventory. Based
on Mother’s score, Dr. Bromberg made several findings. First, he stated that he believed
Mother had been untruthful in a lot of her answers. He also testified that “we can’t rule out
the existence of physical child abuse. We can’t rule out neglect. We can’t rule out more
significant psychological impairment. We can’t rule out more significant substance use
and abuse.” Trial Tr. at 81. Dr. Bromberg further testified that Mother’s personality
disorder “is very destructive * * * in a person’s relationships because it involves
dysfunctional * * * interpersonal skills, and * * * relationships are really interfered with. * * *
[Y]ou have a lot of relationship problems all the way around.” Trial Tr. at 64-65.
{¶ 23} Finally, when Dr. Bromberg was asked about his concerns with respect to
Mother’s ability to parent all four children, he told the court, “I think it would be unfair to
the mom. * * * I think it would be unfair to the kids, * * * because it’s putting everybody –
it’s compromising everybody.” Trial Tr. at 89-90. Based on the trial testimony, the court
did not believe that a secure permanent placement could be achieved without a grant of
permanent custody to MCCS.
The wishes of the children
{¶ 24} As to the wishes of the children, another factor found in R.C.
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2151.414(D)(1), the trial court held that due to the young ages of A.B.1 (five years old)
and A.B.2 (four years old), they were unable to formulate an opinion regarding their
custody, and therefore, the factor was inapplicable.
Custodial History
{¶ 25} A.B.1 and A.B.2 had been in the custody and care of MCCS for more than
12 of the preceding 22 consecutive months; A.B.1 had been two-years old and A.B.2 had
been one-year old when they went into foster care, meaning they had spent most of their
lives in the custody of MCCS. Additionally, the boys had been in the foster care of Kerri
for approximately nine months and were thriving. The trial court, however, made no
finding on this factor.
R.C. 2151.414(E) Factors
{¶ 26} The final factor the trial court must consider when determining whether
granting permanent custody to the agency is in the best interest of the children is whether
any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 apply in relation to the
parents and child. The trial court determined that there was no evidence presented
relevant to these factors.
{¶ 27} After considering the requisite factors, the trial court found by clear and
convincing evidence that both children had been in the temporary custody of MCCS for
over 12 months of a consecutive 22-month period and that it was in the best interest of
A.B.1 and A.B.2 to grant permanent custody to MCCS and divest Mother of parental
rights. The trial court’s decision was detailed, analyzed the requisite factors, and was
reasonable. Based on our review of the record and the discussion above, we cannot say
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the trial court abused its discretion.
{¶ 28} The assignment of error is overruled.
III. Conclusion
{¶ 29} The judgment of the trial court will be affirmed.
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WELBAUM, P.J. and TUCKER, J., concur.