In re A.R. , 2021 Ohio 3615 ( 2021 )

[Cite as In re A.R., 2021-Ohio-3615.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
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IN RE: A.R. : Appellate Case No. 29153
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: Trial Court Case No. G-2015-005908-
: 0P, 0S
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: (Juvenile Appeal from
: Common Pleas Court)
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OPINION
Rendered on the 8th day of October, 2021.
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MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Appellee MCCS
ALANA VAN GUNDY, Atty. Reg. No. 0100651, P.O. Box 245, Bellbrook, Ohio 45305
Attorney for Appellant Mother
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DONOVAN, J.
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{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which terminated her parental rights and granted
permanent custody of Mother's child, A.R., to Montgomery County Children Services
(MCCS). Mother filed a timely notice of appeal on May 28, 2021. A.R.’s father did not
appeal the termination of his parental rights.
{¶ 2} A.R. was born in May 2013. On September 22, 2015, when A.R. was
approximately two years old, MCCS filed a complaint alleging that she was a dependent
child. On December 17, 2015, A.R. was adjudicated a dependent child and placed in
the custody of maternal relatives. On August 30, 2016, temporary custody of A.R. was
transferred to MCCS upon a motion filed by the agency. On July 26, 2017, MCCS filed
a motion for permanent custody of A.R., or in the alternative, for an award of legal custody
of A.R. to the non-relative foster parents with whom she had been living. On December
5, 2017, the trial court granted legal custody of A.R. to her non-relative foster parents.
{¶ 3} On December 10, 2018, A.R. was placed in the interim temporary custody of
MCCS. On April 29, 2019, MCCS was awarded temporary custody of A.R., and on
November 19, 2019, MCCS filed a motion for permanent custody of A.R. On September
25, 2020, a permanent custody hearing was held before a magistrate.
{¶ 4} The record established that Mother was placed on a case plan with the
following objectives: 1) establish sufficient income and adequate housing; 2) engage in
mental health treatment and medication management; 3) refrain from domestic violence
and physical abuse with her boyfriend; 4) attend a course on healthy relationships; 5)
engage in family counseling, including counseling with A.R.’s two older sisters; 6) refrain
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from discussing adult topics and situations in front of A.R.; 7) visit A.R. on a weekly basis;
8) follow the recommendations of her primary care physicians and specialists and take
her medications as prescribed; 9) sign releases of information for MCCS and for
healthcare providers; 10) attend A.R.’s appointments; and 11) acknowledge that if her
boyfriend continued to live with her, he would be required to engage in a case plan before
reunification could occur.
{¶ 5} Mother’s MCCS caseworker, Rondel Boyd, testified that Mother failed to
verify her income, and the only employment verification she provided was a photograph
of a 25- to 30-hour weekly schedule at a Wendy’s restaurant. Boyd also testified that
Mother lived in an efficiency apartment with one bed. Boyd testified that the apartment
was always dirty whenever she visited Mother, and the floor was covered in trash,
including empty beer cans and cigarette butts. At one point during the course of these
proceedings, Mother’s apartment was infested by bed bugs. Boyd testified that the
apartment had previously flooded, and the carpet, which had not been since removed,
smelled like mildew; on some occasions when she visited Mother, Boyd would not enter
the apartment because of the intense odor.
{¶ 6} The record also established that Mother had been diagnosed with anxiety,
bipolar disorder, and post-traumatic stress disorder, but had stopped taking her
prescribed medication during the pendency of the proceedings. Boyd testified that
MCCS had also never received any verification of medical treatment from Mother. At
one point Mother was removed from treatment at Eastway Services because she
repeatedly missed appointments. Boyd testified that Mother continued to speak
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inappropriately to and around A.R. regarding adult topics, including other children’s
sexual behaviors. Furthermore, Boyd testified that Mother and her boyfriend were
physically violent with each other. Mother was even arrested on suspicion of felonious
assault in regard to an incident in which she allegedly sliced her boyfriend’s arm with a
box cutter. During the pendency of the proceedings, Mother was also arrested for arson
in relation to a fire that occurred at another apartment in her complex, and she spent ten
days in jail. The record is unclear regarding the status and/or disposition, if any, with
respect to these offenses.
{¶ 7} Boyd testified that, despite being referred to a program, Mother failed to
attend any healthy relationship courses. Additionally, Mother visited A.R. sporadically,
approximately 65 percent of the time. According to Boyd, Mother reported that her
boyfriend had a substance abuse problem and used methamphetamine. Mother’s
boyfriend also informed Boyd that he had no intention of complying with MCCS as it
related to Mother’s attempted reunification with A.R., and he would not participate in a
case plan.
{¶ 8} Even though Father did not appeal the termination of his parental rights with
respect to A.R., it is noteworthy that by his own admission to Boyd, he had been convicted
of rape in the past and had served a significant prison sentence. Boyd testified that part
of Father’s case plan was to engage in sex offender treatment, which he refused to do.
Additionally, Father had no contact with A.R. from May 17, 2019, through September 17,
2019. The trial court found that Father had abandoned A.R.
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{¶ 9} A.R.’s foster mother, D.C., also testified at the permanent custody hearing.
D.C. testified that A.R. had been under her and her husband’s care and supervision since
December 7, 2018. D.C. also testified that A.R. had a loving relationship with everyone
in her foster home, including D.C.’s older children and her extended family. At the time
of the permanent custody hearing, A.R. was participating in online schooling due to the
COVID pandemic, but D.C. testified that A.R. previously had attended a day care, played
flag football, and had been involved in activities with D.C.’s church. D.C. testified that
A.R. hiked with her foster family, and they rode bikes together. D.C. testified that A.R.
was a very athletic child, had no identified special needs, and was not on any type of
individual education plan (IEP). D.C. testified that she and her husband were interested
in adopting A.R., and there was adequate space for A.R. in D.C.’s home.
{¶ 10} On October 31, 2020, the magistrate granted MCCS's motion for permanent
custody of A.R. Mother filed timely objections and supplemental objections to the
magistrate's decision. On May 12, 2021, the trial court overruled Mother's objections and
awarded permanent custody of A.R. to MCCS.
{¶ 11} It is from this judgment that Mother now appeals.
{¶ 12} Mother’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO MONTGOMERY COUNTY CHILDREN’S SERVICES
BECAUSE THAT AGENCY FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE
BEST INTEREST OF THE MINOR CHILD.
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{¶ 13} Mother contends that the trial court erred when it awarded permanent
custody of A.R. to MCCS, finding that it was in the child's best interest. Specifically,
Mother argues that the evidence adduced at the permanent custody hearing established
that she had made significant progress toward completing her case plan objectives and
should have been allowed more time to successfully be reunited with A.R.
{¶ 14} This Court has previously noted:
The United States Supreme Court has recognized that parents'
interest in the care, custody, and control of their children “is perhaps the
oldest of the fundamental liberty interests recognized” by the court. Troxel
v. Granville (2000), 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49.
Parents who are suitable persons have a “paramount” right to the custody
of their minor children. In re Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d
293, 369 N.E.2d 1047.
In a proceeding for the termination of parental rights, all the court's
findings must be supported by clear and convincing evidence. R.C.
2151.414(E); In re J.R., Montgomery App. No. 21749, 2007-Ohio-186, at
¶ 9. * * * We review the trial court's judgment for an abuse of discretion.
See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 48
(applying abuse-of-discretion standard to trial court's findings under R.C.
2151.414).
In re K.W., 185 Ohio App.3d 629, 2010-Ohio-29, 925 N.E.2d 181, ¶ 14-15 (2d Dist.).
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{¶ 15} In applying an abuse-of-discretion standard, we will not disturb the trial
court’s decision on evidentiary grounds ‘if the record contains competent, credible
evidence by which the court could have formed a firm belief or conviction that the essential
statutory elements for a termination of parental rights have been established.’ ” In the
Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 6 (2d Dist.), citing In re L.C., 2d Dist.
Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. The phrase “abuse of discretion” implies
a decision which is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 16} R.C. 2151.414 establishes a two-part test for courts to apply when
determining a motion for permanent custody to a public services agency. The statute
requires the court to find, by clear and convincing evidence, that: (1) granting permanent
custody of the child to the agency is in the best interest of the child; and (2) either the
child (a) cannot be placed with either parent within a reasonable period of time or should
not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;
(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of
the child; or (d) has been in the temporary custody of one or more public or private
children services agencies for 12 or more months of a consecutive 22-month period. In
re L.W., 2d Dist. Montgomery No. 26243, 2014-Ohio-4507, ¶ 11, citing R.C.
2151.414(B)(1).
{¶ 17} R.C. 2151.414(D)(1) directs the trial court to consider all relevant factors
when determining the best interest of the child, including but not limited to: (a) the
interaction and interrelationship of the child with the child's parents, relatives, foster
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parents and any other person who may significantly affect the child; (b) the wishes of the
child; (c) the custodial history of the child, including whether the child has been in the
temporary custody of one or more public children services agencies or private child
placing agencies for 12 or more months of a consecutive 22-month period; (d) the child's
need for a legally secure permanent placement and whether that type of placement can
be achieved without a grant of permanent custody to the agency; and (e) whether any of
the factors in R.C. 2151.414(E)(7) through (11) are applicable. “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, at ¶ 57.
{¶ 18} R.C. 2151.414(E) further provides:
(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code 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, * * * 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:
(1) Following the placement of the child outside the child's home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
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to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child's home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual disability,
physical disability, or 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 or for the
purposes of division (A)(4) of section 2151.353 of the Revised Code;
***
(4) The parent has demonstrated a lack of commitment toward the child by
failing to regularly support, visit, or communicate with the child when able
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
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(10) The parent has abandoned the child.
***
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(14) The parent for any reason is unwilling to provide food, clothing, shelter,
and other basic necessities for the child or to prevent the child from suffering
physical, emotional, or sexual abuse or physical, emotional, or mental
neglect.
***
(16) Any other factor the court considers relevant.
{¶ 19} Mother does not dispute that, at the time of the permanent custody hearing
on September 25, 2020, A.R. had been in the custody of the MCCS for almost five years,
well in excess of 12 or more months of a consecutive 22-month period.
{¶ 20} As previously stated, Mother was placed on a case plan with the following
objectives: 1) establish sufficient income and adequate housing; 2) engage in mental
health treatment and medication management; 3) refrain from domestic violence and
physical abuse with her boyfriend; 4) attend a course on healthy relationships; 5) engage
in family counseling, including counseling with A.R.’s two older sisters; 6) refrain from
discussing adult topics and situations in front of A.R.; 7) visit A.R. on a weekly basis; 8)
follow the recommendations of her primary care physicians and specialists and take her
medications as prescribed; 9) sign releases of information for MCCS and for healthcare
providers; 10) attend A.R.’s appointments; and 11) acknowledge that if her boyfriend
continued to live with her, he would be required to engage in a case plan before
reunification could occur.
{¶ 21} According to Boyd, Mother had failed to verify her income; she only provided
a photograph of a 25- to 30-hour weekly schedule at a Wendy’s restaurant. Mother also
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lived in an efficiency apartment with only one bed, and the apartment was always dirty
when Boyd visited Mother, including trash on the floor. There had been a past bed bug
infestation. Boyd testified that the apartment had previously flooded, and the carpet
smelled like mildew and had an intense odor.
{¶ 22} Mother had been diagnosed with anxiety, bipolar disorder, and post-
traumatic stress disorder, but had stopped taking her prescribed medication for these
conditions. MCCS had also never received any verification of medical treatment from
Mother. Boyd testified that at one point Mother was removed from treatment at Eastway
Services because she had repeatedly missed appointments.
{¶ 23} Boyd testified that Mother continued to speak inappropriately to and around
A.R. regarding adult topics, and Mother and her boyfriend were physically violent with
each other. Mother had been arrested on suspicion of felonious assault after she
allegedly sliced her boyfriend’s arm with a box cutter. Mother had also been arrested for
arson, for which she spent ten days in jail.
{¶ 24} Boyd testified that Mother failed to attend any healthy relationship courses
despite being referred to a program, and she visited A.R. only sporadically. Boyd also
testified that Mother reported that her boyfriend had a substance abuse problem and had
no intention of complying with any MCCS case plan.
{¶ 25} Regarding her current living arrangement, the trial court found that A.R. was
bonded with her foster family, with whom she had lived since December 2018. The trial
court also found that A.R. was adjusting well to her living situation and was not exhibiting
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any behavioral issues, and her foster family was committed to finalizing permanent
adoption of A.R.
{¶ 26} We conclude that the trial court did not abuse its discretion when it found
that it was in A.R.’s best interest to remain in the custody and care of her foster family
where she is apparently thriving. In sum, the record established that MCCS made every
reasonable effort to reunite Mother with A.R. Mother's failure to complete the case plan,
however, established that she was either unwilling or incapable of adequately caring for
A.R. Although Mother made some effort to complete her case plan objectives, the record
established that she failed to provide A.R. with safe and adequate housing, failed to
maintain stable employment, failed to properly address her abusive relationship with her
boyfriend, failed to take the medication for her mental health issues, and failed to take the
necessary steps in order to have an appropriate parent/child relationship with A.R.
Therefore, we find that the trial court did not err when it found that clear and convincing
evidence was adduced at the permanent custody hearing which supported an award of
permanent custody of A.R. to MCCS and the termination of Mother's parental rights.
{¶ 27} Mother's sole assignment of error is overruled.
{¶ 28} Mother's assignment of error having been overruled, the judgment of the
trial court is affirmed.
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HALL, J. and WELBAUM, J., concur.
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Copies sent to:
Mathias H. Heck, Jr.
J. Joshua Rizzo
Alana Van Gundy
Markus Moll, Jr.
Misty M. Connors, GAL
Hon. Anthony Capizzi