In re P.H. , 2021 Ohio 3726 ( 2021 )

[Cite as In re P.H., 2021-Ohio-3726.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: P.H. C.A. No. 29985
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN20-03-000210
DECISION AND JOURNAL ENTRY
Dated: October 20, 2021
CARR, Judge.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that terminated her parental rights to her child P.H. and placed the child
in the permanent custody of Summit County Children Services Board (“CSB” or “the agency”).
This Court affirms.
I.
{¶2} Mother is the biological mother of P.H. (d.o.b. 3/5/20).1 Although it was initially
believed that the child’s alleged father had signed a paternity affidavit in the hospital after the
child’s birth, CSB’s attempt to verify that with the state child support agency was unsuccessful.
Accordingly, there was nothing in the record to support the initial belief, and the case proceeded
and was resolved with the understanding that the child’s paternity was never established.
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Mother also has three older children who are not parties to this appeal. Mother’s oldest
child is in the legal custody of a relative, and her twins were placed in the legal custody of a
relative during a companion case that proceeded with the case involving P.H.
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{¶3} Mother tested positive for amphetamines at 27 weeks’ gestation with P.H. and
positive for methamphetamine at the child’s birth. Mother had a history of methamphetamine
and heroin use and admitted to using methamphetamine three days before P.H. was born.
Mother was unemployed and had no stable housing. The child’s alleged father had a significant
criminal history and an active warrant for his arrest on an assault charge. Based on these issues,
CSB filed a complaint shortly after the child’s birth alleging that P.H. was an abused, neglected,
and dependent child. P.H. was placed in the emergency temporary custody of CSB upon her
release from the hospital at four days old.
{¶4} P.H. was adjudicated a dependent child after Mother stipulated to the allegations
in the complaint and the agency presented evidence in the alleged father’s absence. CSB
withdrew its allegations of abuse and neglect. After a dispositional hearing, P.H. was placed in
the temporary custody of CSB. The juvenile court adopted the agency’s case plan which
required Mother to submit to a chemical dependency assessment and follow all
recommendations. The alleged father was required to demonstrate the ability to provide for the
child’s basic needs and contact the caseworker if he wished to work towards reunification, as the
agency had been unable to contact him since the shelter care hearing.
{¶5} After the first review hearing, the magistrate found that Mother had not remained
in regular contact with the caseworker and was not involved in case plan services. The alleged
father had had no contact with the agency. The child remained in CSB’s temporary custody and
Mother was allowed to visit with the child in the discretion of the caseworker and guardian ad
litem.
{¶6} Almost nine months into the case, CSB moved for permanent custody. The
agency alleged that the child could not or should not be returned to the parents’ custody based on
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various statutory grounds, and that an award of permanent custody was in the child’s best
interest. Mother filed alternative dispositional motions for legal custody and for a first six-month
extension of temporary custody. CSB perfected service of its motion on Mother, the alleged
father, and John Doe. After a hearing conducted approximately 14 months into the case, the
juvenile court granted the agency’s motion for permanent custody and terminated the parents’
parental rights. Mother filed a timely appeal and now raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN ITS GRANT OF
PERMANENT CUSTODY TO [CSB], AND THE DECISION OF THE TRIAL
COURT TO TERMINATE THE PARENTS’ RIGHTS WAS NOT SUPPORTED
BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶7} Mother argues that the juvenile court’s judgment terminating all parental rights
and awarding permanent custody of P.H. to CSB was against the manifest weight of the
evidence. In addition, Mother argues that the juvenile court erred by not granting a six-month
extension of temporary custody to give her more time to comply with her case plan objectives.
This Court disagrees.
{¶8} In considering whether the juvenile court’s judgment is against the manifest
weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the
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evidence, this Court “must always be mindful of the presumption in favor of the finder of fact.”
Id. at ¶ 21.
{¶9} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency, it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child of the same parent has been adjudicated abused, neglected, or dependent
three times; or that the child cannot be placed with either parent, based on an analysis under R.C.
2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of
the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and
2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 98-99 (1996). The best interest
factors include: the interaction and interrelationships of the child, the wishes of the child, the
custodial history of the child, the child’s need for permanence and whether that can be achieved
without a grant of permanent custody, and whether any of the factors outlined in R.C.
2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see In re R.G., 9th Dist. Summit Nos.
24834, 24850, 2009-Ohio-6284, ¶ 11. Clear and convincing evidence is that which will
“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶10} As its first-prong ground, CSB alleged that P.H. could not or should not be
returned to her parents’ custody. See R.C. 2151.414(B)(1)(a). The juvenile court found that the
agency satisfied its allegation based on the parents’ failure to remedy the circumstances
underlying the child’s removal from her home pursuant to R.C. 2151.414(E)(1), which provides:
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In determining at a hearing [on a motion for permanent custody] 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 [permanent custody]
hearing * * * 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 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.
{¶11} P.H. was taken into agency custody and care days after her birth after both Mother
and the child tested positive for illegal drugs. As paternity had not been established, there was
no known father who might have been deemed appropriate and able to provide a safe
environment for the child. No alleged father contacted CSB during the case to express an
interest in establishing a relationship with P.H. or in seeking custody of the child. Accordingly,
the child’s father did not remedy the concerns that prevented reunification of P.H. with her
father.
{¶12} Mother admittedly had struggled with substance abuse issues for several years
when the child was born. She historically had predominantly used methamphetamine. The CSB
caseworker made a referral to Community Health Center (“CHC”) for Mother and scheduled two
separate dates for a drug assessment. The caseworker explained to Mother that CHC was the
best option to facilitate drug treatment and later recommend housing and employment programs
after she got her addiction issues under control.
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{¶13} Although the caseworker told Mother she would transport her for the substance
abuse assessment, Mother did not respond to the caseworker’s calls or texts and did not tell the
caseworker where to pick her up. Mother missed both assessment dates. Mother then told the
caseworker that she planned to seek services at IBH Addiction Recovery (“IBH”). That facility
refused to provide information to the caseworker without a release, but IBH did verify that they
had no records regarding anyone by Mother’s name.
{¶14} Mother initiated services at New Destiny Treatment Center (“New Destiny”). She
completed an assessment in mid-March 2020, but then did not return until late April 2020, to
discuss a treatment plan. After that, Mother participated in four counseling sessions and three
random drug screens up to early June 2020, at which time Mother ceased engaging in services.
Although her three screens tested negative for drugs, another drug screen performed by CSB
during that same period was positive for methamphetamine.
{¶15} New Destiny terminated Mother’s services for non-compliance in August 2020.
Mother returned in September 2020, to reengage in services and completed another intake
session by phone. She failed to follow through with further services at that time, however. In
February 2021, Mother again returned to New Destiny, admitted she had recently used
methamphetamine, and once more participated in the initial intake to reengage in drug treatment
services. After Mother failed to stay in touch with that service provider after that third intake
session, New Destiny again discharged Mother from their program.
{¶16} Mother submitted to six random drug screens at CSB’s request on May 14, 2020,
June 29, 2020, August 10, 2020, October 15, 2020, December 31, 2020, and February 11, 2021.
She tested positive for methamphetamine each time. She never fully engaged in drug treatment
or demonstrated the ability to attain and maintain sobriety. Accordingly, CSB established by
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clear and convincing evidence that Mother failed to remedy the major issue that necessitated the
child’s removal from her care.
{¶17} The juvenile court’s best interest determination was also supported by clear and
convincing evidence. After her four-day hospital stay after birth, P.H. has spent her entire life in
foster care. She is closely bonded with the foster parents. P.H. also knows and has a bond with
Mother. Mother has attended to the child’s needs during visits. The agency workers and
guardian ad litem all testified that Mother was always appropriate with the child. Mother was
able to visit with P.H. in public places chosen by Mother, so many visits took place in parks and
libraries. Of Mother’s 38 scheduled visits, she failed to appear or confirm for 13, resulting in
their cancelation. Mother was late for 16 of her remaining 25 visits. Mother also had the
opportunity to visit virtually with the child.
{¶18} At 14 months old, P.H. was not capable of expressing her wishes regarding
custody. The guardian ad litem opined that an award of permanent custody was in the child’s
best interest. She clarified that Mother’s ongoing use of methamphetamine prevented Mother
from being able to provide a safe and stable home for the child who was not able to self-protect.
{¶19} P.H. requires a stable and permanent home. No one has identified himself as the
child’s father and indicated a willingness and ability to care for the child. Mother has not
addressed her severe addiction issues and is unable to provide a safe and stable home for P.H.
{¶20} As discussed above, Mother failed to initiate any substance abuse services at CHC
or IBH. She testified that she had scheduled an intake appointment at IBH to occur during the
week after the permanent custody hearing, but she failed to tell the caseworker about her plan.
Mother began and quickly ceased any engagement in drug treatment services at New Destiny on
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three separate occasions. She continued to use and test positive for methamphetamine
throughout the case.
{¶21} Mother argues that her participation in substance abuse treatment was hindered by
her lack of transportation. The caseworker testified that she offered bus passes to Mother. When
Mother indicated to the visitation monitor that she did not know how to use the public bus
system, the monitor offered to teach Mother how to do so. Mother later disputed that she did not
understand how to ride the bus and claimed that she was merely uncomfortable riding public
transportation given the ongoing virus pandemic and her health issues. Mother did not clarify
her health condition with the caseworker, and Mother testified at the permanent custody hearing
that her health did not in fact interfere with her ability to participate in services. The caseworker
testified that she repeatedly told Mother that she would transport Mother to any appointment
with notice. Mother admitted that she rarely took advantage of the caseworker’s offer because
she did not know whom she could trust. On occasions when Mother appeared for services or
visits, she rode with a friend or used a private car service like Uber. In addition, both the agency
caseworker and assessor at New Destiny testified that virtual services were readily available so
that Mother could participate without exposure to others.
{¶22} Mother did not provide enough information to the caseworker or guardian ad
litem to allow either of them to verify that Mother suffers from congestive heart failure as she
claimed. Mother admitted that she had not told her cardiologist that she uses methamphetamine,
and she acknowledged that it was not a good idea to use drugs if she had an underlying heart
condition.
{¶23} Finally, Mother testified that she recognizes that she has issues which interfere
with her ability to parent. She admitted that she uses methamphetamine and that she is
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“[t]echnically * * * homeless.” She explained that her lack of employment and inability to
receive benefits have made it difficult for her to save money for a home. Mother testified that
the child’s father has not participated in the case because he grew up in the child welfare system
and was afraid to get involved.
{¶24} Based on a thorough review of the record, this is not the exceptional case in which
the trier of fact clearly lost its way and committed a manifest miscarriage of justice by
terminating the parents’ parental rights and awarding permanent custody of P.H. to CSB. The
child’s paternity was never established, and no alleged father pursued any type of relationship
with the child or attempted to demonstrate that he could provide for her basic needs. Mother
never addressed her substance abuse issues and continued to use methamphetamine throughout
the case despite the agency’s referrals for substance abuse treatment and offers to provide
transportation, as well as the opportunity to participate remotely in counseling. Mother had no
housing or ability to meet the basic needs of the child. Under these circumstances, CSB
established by clear and convincing evidence that an award of permanent custody was in the best
interest of the child. Accordingly, the juvenile court’s judgment terminating Mother’s and any
father’s parental rights and placing P.H. in the permanent custody of the agency was not against
the manifest weight of the evidence.
{¶25} To the extent that Mother argues that the juvenile court’s denial of her motion for
a six-month extension of temporary custody was against the manifest weight of the evidence, this
Court disagrees. Pursuant to R.C. 2151.415(D)(1), the juvenile court may extend the agency’s
temporary custody for six months if there is clear and convincing evidence that (1) an extension
is in the best interest of the child, (2) there has been significant case plan compliance, and (3)
there is reasonable cause to believe that reunification will occur within the period of extension.
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The juvenile court’s decision to grant or deny an extension of temporary custody is a
discretionary one which will not be reversed absent an abuse of discretion. In re A.S., 9th Dist.
Summit No. 28743, 2017-Ohio-8984, ¶ 11. A trial court abuses its discretion when its attitude is
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219
(1983).
{¶26} Although Mother filed her motion for a six-month extension of temporary custody
approximately four months before the permanent custody hearing, she did not take advantage of
that time to seriously engage in substance abuse treatment. In fact, at no time during the 14-
month case did she participate in services to enable her to attain and maintain sobriety. When
she did initiate services, she was ultimately terminated for non-compliance. Although she
claimed to have scheduled yet another intake appointment for the week after the hearing, she had
not informed the agency so the caseworker could not verify Mother’s appointment. Throughout
the case, Mother demonstrated no commitment to achieving sobriety. By the time of the
permanent custody hearing, Mother failed to show any significant compliance with her case plan
objective that might indicate that reunification with the child would reasonably be possible
within the time requested for extension. Accordingly, the juvenile court did not unreasonably
deny Mother’s request for a six-month extension. Moreover, as this Court has already
determined that an award of permanent custody was in the child’s best interest, “the alternative
disposition of extending temporary custody was not.” See id., quoting In re S.D., 9th Dist.
Lorain Nos. 15CA010864 and 15CA010867, 2016-Ohio-1493, ¶ 30. Mother’s sole assignment
of error is overruled.
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III.
{¶27} Mother’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
CALLAHAN, J.
CONCUR.
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APPEARANCES:
THOMAS C. LOEPP, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
BENJAMIN AYERS, Guardian ad Litem.