In re J.R. , 2023 Ohio 2145 ( 2023 )

[Cite as In re J.R., 2023-Ohio-2145.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.R. : APPEAL NO. C-220579
TRIAL NO. F20-0442Z
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 28, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Silvia Beck, Assistant
Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family
Services,
Christopher Bazeley, for Appellant Mother,
Kathleen Kenney, Attorney for the Guardian Ad Litem for J.R.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Appellant mother (“mother”) appeals the Hamilton County Juvenile
Court’s judgment awarding legal custody of her daughter, J.R., to J.R.’s maternal
great-grandmother (“K.H.”). We affirm the juvenile court’s judgment.
I. Relevant Facts and Procedural History
{¶2} J.R. was born in March 2019 at 24-weeks’ gestation and hospitalized in
the neonatal intensive care unit. She transferred to the “Transitional Care Center” at
the Cincinnati Children’s Hospital and Medical Center (“CCHMC”) until her discharge
in March 2020. J.R. had underdeveloped lungs, which required her to have a
tracheotomy, ventilator, g-tube, and 24-hour care.
{¶3} At the time of J.R.’s discharge, CCHMC reported that mother had not
successfully completed the requisite 12-hour training session, which required a
caregiver to provide care without nursing assistance, due to mother “routinely” being
“combative with hospital staff,” her “refus[al] to feed [J.R.] at the designated hour,”
and “threat[s] to leave with the child against medical advice.” CCHMC staff
recommended that mother feed J.R. every three hours, but mother stated that she
would feed J.R. every four hours because the nurses “were not going to regulate her
baby” and she would “argue with any and everybody if they talk to her like [J.R.] is
their child.”
{¶4} Meanwhile, CCHMC staff successfully trained K.H. to provide the
required care. The staff agreed to release J.R. to mother “on the condition that [J.R.
and mother] live with [K.H.] and allow nursing staff to assist in care 24 hours a day.”
{¶5} Approximately one month after CCHMC discharged J.R., the Hamilton
County Department of Job and Family Services (“JFS”) received a report that mother
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“often [left] the child alone with the in-home nursing staff both day and night,”
“continues to leave the majority of the care to the nursing staff,” and “often smokes
marijuana and does not wake up to care for the child.”
{¶6} In April 2020, JFS was informed that mother had left K.H.’s home with
J.R., taking J.R.’s ventilator but not the charger. This was alarming because the
ventilator had to be charged every six hours to ensure proper operation. JFS and law
enforcement initially could not locate J.R. at various addresses, including K.H.’s home,
because no one would answer the door. They eventually located mother and J.R. at
J.R.’s maternal grandmother’s (“grandmother”) home.
{¶7} Once authorities located mother and J.R., mother and grandmother
initially refused JFS’s request to take J.R. to CCHMC, but they eventually agreed. Law
enforcement followed them to the hospital. CCHMC staff reported to JFS that mother
“became combative with hospital staff, which impeded the ability to provide the child
medical care.” CCHMC security removed mother from the premises in handcuffs.
The juvenile court granted interim custody of J.R. to JFS
{¶8} JFS became involved with the family due to its concerns with mother’s
ability to meet J.R.’s medical and mental-health needs, and mother’s removing J.R.
from K.H.’s home without the appropriate medical equipment. Moreover, the agency
was concerned when it was not able to locate J.R.
{¶9} In April 2020, a Hamilton County Juvenile Court magistrate granted
JFS’s ex-parte emergency-custody motion and subsequent motion for interim custody
of J.R. JFS’s custody complaint alleged that J.R. was neglected under R.C. 2151.03 as
she (1) “lack[ed] adequate parental care because of the faults or habits of [her]
parents,” (2) her parents “neglect[ed] or refuse[d] to provide proper or necessary
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subsistence, education, medical, or surgical care or treatment, or other care necessary
for [her] health, morals, or well-being,” and her parents’ “omission cause[d] the child
to suffer physical or mental injury that harm[ed] or threaten[ed] to harm [her] health
or welfare.” The complaint further alleged that J.R. was dependent under R.C. 2151.04
as she “lacked adequate parental care by reason of the mental or physical condition”
of her parents and J.R.’s “condition or environment is such as to warrant the state, in
the interests of the child in assuming her guardianship.”
{¶10} In May 2020, during a tracheotomy change, J.R. went into cardiac
arrest. J.R. was admitted to CCHMC “for the foreseeable future.” She was discharged
in July 2020.
{¶11} JFS’s initial case plan in June 2020 reported that (1) J.R. was in
“impending danger” as mother was “unwilling or unable to meet the child’s immediate
and serious physical or mental health needs,” (2) mother was “out of control” as she
moved J.R. out of the home where the only approved caregiver, K.H., resided, and
where J.R.’s medical equipment and nursing care were set up, (3) mother was not
aligned with J.R.’s medical needs or following the medical team’s recommendations
in providing care for J.R., (4) the situation was severe as J.R. was unable to audibly
cry due to the tracheotomy, was blind, and could not advocate for herself, and (5) the
threat of mother’s “unpredictable” moods and “anger outbursts” was imminent and
could “have a severe effect on [J.R.] if proactive measures were not taken.”
{¶12} The case plan required mother to (1) avoid illegal substances that
impaired her parenting abilities; (2) cooperate with hospital and in-home nursing staff
to care for J.R.; (3) complete random urine screens because caseworkers had smelled
marijuana on mother during J.R.’s removal—usage which caused mother to sleep
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heavily; and (4) stay current on J.R.’s medical care and comply with medical
recommendations. The plan required J.R. to remain in K.H.’s home and provided for
mother’s supervised visits there.
{¶13} Mother disagreed with the June 2020 case plan and reported that she
would not complete the services.
The juvenile court granted JFS’s request to place J.R. at St. Joe’s
{¶14} In July 2020, JFS updated the case plan because J.R. was ready to be
discharged from CCHMC, but “mother has refused to meet/engage in the [discharge]
process as the only option she states is discharge [to her] home.”
{¶15} The magistrate held a hearing on JFS’s proposed placement to St.
Joseph Home of Cincinnati (“St. Joe’s”) in October 2020. J.R.’s medical team sought
a long-term care facility, rather than discharging J.R. to mother’s home. J.R. had not
voluntarily moved since her cardiac arrest, was in a terminal condition, and was not
expected to improve. The magistrate acknowledged that mother loved J.R., had
engaged in care conferences consistently over the summer, had been trained in
providing care for J.R., and testified that she had family, including K.H., and friends
who were willing to help with the child’s care.
{¶16} The magistrate approved and incorporated the July 2020 case plan,
which placed J.R. at St. Joe’s. Mother was to contact St. Joe’s to set up weekly
supervised visits.
The magistrate adjudicated J.R dependent
{¶17} In February 2021, the magistrate adjudicated J.R. dependent and
dismissed allegations of neglect. The magistrate based his findings on J.R. not being
released to mother upon her CCHMC discharge due to “(1) mother’s disposition, (2)
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OHIO FIRST DISTRICT COURT OF APPEALS
her interaction with hospital staff, and (3) the potential impact of mother’s
recalcitrance toward certain professionals [] on the quality of the child’s care.” The
magistrate subsequently granted JFS temporary custody of J.R.
{¶18} In early 2021, mother would not give consent for surgery to assess J.R.’s
lung function. As such, J.R.’s procedure had to be rescheduled while JFS awaited the
court’s approval of the surgery.
{¶19} An April 2021 semi-annual report (“SAR”) stated that Mother continued
to refuse to sign any releases of information for JFS, the caseworker had not been able
to meet with her, and visitation was the only case-plan service in which mother
participated. Mother was working better with St. Joe’s staff, though she continued “to
be more concerned with exerting control over [J.R.’s] care.” The SAR also reported
that a social media video showed mother “smoking some substance” and that the
guardian ad litem reported concerns that mother was “abusing substances.” Although
reunification remained the goal, mother had not made sufficient progress with the
case plan.
{¶20} Then in June 2021, JFS submitted a case plan showing that the social
media video of mother smoking marijuana also captured her “talking openly” about
ending her and J.R.’s lives, and that mother “smokes and drinks when she is mad.”
Further, it reported that in JFS’s interactions with mother, she had been angry and
combative, even in the courthouse. Although case plans continued to set expectations
for mother, she did not meet those expectations. She refused to discuss J.R.’s case
plan, failed to engage with JFS or J.R.’s caregivers, and stopped visiting J.R. after a re-
admission to CCHMC in July 2021.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶21} In December 2021, JFS moved to terminate its temporary custody and
award custody of J.R. to K.H.
Mother’s interaction with J.R.’s caregivers at St. Joe’s
{¶22} St. Joe’s had been providing 24-hour direct nursing and direct day-to-
day care for J.R. since November 2020. J.R. required 24-hour medical care because
she was ventilator-dependent, and had a tracheotomy and a feeding tube. J.R. did “not
have much purposeful movement at all,” was unable to interact verbally or with facial
expressions, had not made any improvements since her admission to St. Joe’s, and
was expected to remain in this condition for the rest of her life.
{¶23} Dominique Weaver, a program service manager with St. Joe’s,
coordinated the visits and day-to-day logistics for J.R. Weaver testified at the January
2022 hearing that family members could visit without the nurse if they completed
training “on trach care, changing the trach emergency care. They go over the meds * *
* and go over the feedings; basically, the day-to-day needs that [the] resident needs.”
Once the training is complete, the parent must do a “test-out” where the parent stays
“in a cottage with the loved one” for 24 hours and provides all the care during that
time, along with a second caregiver. The parent must have a second caregiver at the
discharge training before the resident is discharged.
{¶24} Weaver recalled that mother attended a “person centered planning”—
an annual meeting of all the caregivers to review the resident’s care for the previous
year. The meeting was “a little tense” and “voices kind of got raised” because mother
and grandmother wanted to discuss discharging J.R., but that meeting was not
intended to discuss discharge. Mother and grandmother left the meeting. Mother told
St. Joe’s that “the Court said [she] can take [J.R.] home, [she was] taking [J.R.] home,”
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OHIO FIRST DISTRICT COURT OF APPEALS
and she submitted paperwork to have J.R. discharged. But St. Joe’s did not release
J.R. because JFS provided documents to show that it had temporary custody of J.R.
{¶25} During Weaver’s last conversation with mother, Weaver informed her
that JFS requested that her caregiver training be put on hold until mother spoke with
JFS because mother had been refusing to have contact with JFS. Weaver testified that
mother “kind of got loud” and said that she did not want to contact JFS, and she did
not have to call JFS because they had “nothing to do with discharge.” Weaver informed
mother that visitation could continue.
{¶26} Mother eventually completed her caregiver training, but she did not
complete the 24-hour training required before a resident’s discharge.
Mother and JFS provide testimony about her participation in case plans
{¶27} Marsheila Caldwell, a JFS caseworker, had developed the initial June
2020 case plan seeking to reunify J.R. with mother. She attempted to reach mother
via phone and email “to try to set up a home visit to discuss case plans, requirements,
as well as get a signed release [of information].” Caldwell scheduled two home visits
between September 2021 and December 2021, but neither happened. Mother
cancelled one. JFS cancelled the other visit because of the belief that it was not safe for
the caseworkers to go into the home due to “aggression, * * * loudness, the yelling, the
threatening that [Caldwell] better be on time” from mother and grandmother. JFS sent
emails to mother to request dates to reschedule the visit for January 2022, but mother
never responded.
{¶28} Caldwell testified that JFS wanted mother and grandmother to engage
in services because J.R. would live with grandmother and mother. They were supposed
to sign a release of information (“ROI”), complete a diagnostic assessment (“DAF”) to
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OHIO FIRST DISTRICT COURT OF APPEALS
determine what, if any, services should be recommended, and submit to random drug
screenings. JFS never sent mother to engage in services because mother never signed
a ROI and refused to meet with JFS. Caldwell explained that the DAF could have
addressed mother’s “out-of-control behaviors, the outbursts,” such as banging on the
door, using profanity, and throwing things out of J.R.’s chair during a visit.
{¶29} At the custody hearing, mother testified that she did not sign the ROI
because she was not “about to inconvenience [her] life for [JFS].” Mother asserted that
she misunderstood that the person being drug tested must sign a ROI for JFS to obtain
the results. The court asked mother if JFS ever explained that she had to sign the ROI,
and mother responded, “No. Nobody never responded.”
Mother and others testified about visitation
{¶30} At the time of the January 2022 hearing, K.H., who had completed her
caregiver training, had been visiting J.R. twice a week since August 23, 2021, except
for December 2021, and had been the only consistent visitor since September 2021.
{¶31} Weaver confirmed that loved ones were permitted to have face-to-face
visits during COVID upon request. Mother could have obtained additional visitation
time had she requested it. Weaver had not received any visit requests from mother
since the end of summer 2021. At the time of this hearing, mother had not contacted
or visited J.R. in the previous 90 days, nor had she reached out to find out how J.R.
was doing.
{¶32} Mother testified that she saw J.R. at St. Joe’s twice a week after J.R. was
admitted in November 2020, and about three or four times between September and
November 2020 “before somebody caught COVID and they shut down” and she had
to “go without seeing” J.R.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶33} But Weaver testified that the last time mother had visited J.R. at St.
Joe’s was “sometime in September” 2021, for a caregiver training. She testified that
before that, mother had not visited J.R. since “toward[] the summer of 2021.”
{¶34} When initially asked why she was not visiting J.R., mother responded,
“I didn’t know I needed to explain that. I didn’t know I needed a reason.” This was
followed by, “She’s coming home. So * * * I went back to my life. I have bills to pay so
I kept working. That wasn’t a big issue to me because I know where she was going * *
*.” Mother testified during the March 2022 custody hearing that she had resumed
visits, and since her January 2022 visit, she had been to five out of six visits, but had
missed the last one because she was sick. Later, mother testified that she recently had
not visited J.R. for two weeks due to needing to have her vehicle repaired, and that she
would be using either her mother’s or brother’s vehicle until hers was repaired.
{¶35} Caldwell testified that if K.H. were awarded custody, J.R. would remain
at St. Joe’s where she, mother, and others could continue to visit her. She testified that,
at that time, J.R. was about two-and-a-half years old. She was not sure if mother was
bonded to J.R. due to the lack of visits.
Mother denied marijuana use
{¶36} Melissa Rogers, director of nursing at St. Joe’s, testified that one of the
nurses overseeing a March 2021 visit reported that mother smelled of marijuana.
Mother explained that she had been around people who had been smoking marijuana
before the visit, that this had happened before, and that she would spray her clothes
before visiting with J.R. so that J.R. would not smell it. A nurse reminded mother that
she must be mindful of sprays and scents on her clothes because of the effect that it
could have on J.R.’s respiratory system.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶37} At the custody hearing, mother asserted that the marijuana smell came
from her grandfather, who has a medical-marijuana card. She said, “I guess they
assume, since there’s a case going on with me, they know I smoke, they assumed it was
me.” Mother stated that JFS did not address this issue until the next visit, and she was
not going to “tell on” her grandfather.
{¶38} Mother did not refute that she had been using marijuana in a social
media video. Instead, she asserted that she no longer used marijuana. She stated that
her job had screened her for drugs, she did not have her work drug screen results with
her, but “it wouldn’t be hard to ask [her] job for a copy.”
{¶39} Mother said that, although she had previously agreed to take a drug test,
she would not take one at that time because JFS should have drug tested her the
previous year when she had provided JFS permission to drug test her. “And nobody
did nothing about it. Nobody never brought it up again.” Mother asserted that she had
requested a drug-screen appointment, but she never got a response.
Mother disagreed with JFS’s testimony about her engagement in case-plan services
{¶40} Mother conceded that she initially did not work with JFS because “the
first person” was rude and was “popping up” at her house. Mother did not believe that
the random visits were necessary as JFS could call in advance.
{¶41} But mother contested the caseworker’s testimony that mother could not
be reached, testifying that she had repeatedly asked the caseworker to call her instead
of emailing her, as she has “over 64,000 emails” in her inbox.
{¶42} Mother explained why JFS could not find J.R. on the day she reportedly
abruptly moved J.R. from K.H.’s home. Mother said that she had been on a walk with
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J.R. and K.H. had cut off mother’s phone service. Further, she said she had all the
equipment and medications that J.R. needed.
{¶43} When opposing counsel asked mother whether it was fair to say that she
was not engaged with J.R.’s treatment team, mother agreed that she was not engaged.
{¶44} Mother testified that grandmother’s home, where mother planned to
live with J.R., had furniture, medical equipment, and necessary supplies for J.R. She
stated that she had spoken with her employer about changing her schedule “to take a
day or two away from [her] normal schedule,” but that grandmother’s nursing agency
was available as additional support.
{¶45} Mother denied that it was important for her to discuss with St. Joe’s the
treatment plan if J.R. were to live with her. Mother denied ever being disruptive during
visits, adding that she “ha[d] no idea” from where JFS got that idea.
The magistrate and trial court came to different conclusions
{¶46} The magistrate determined that custody should be remanded to mother,
finding that mother loves J.R., had engaged in care, and had been trained in providing
care for J.R.
{¶47} But the juvenile court disagreed. It noted J.R.’s permanent vegetative
state and need for 24-hour care. It considered the fact that mother had not visited J.R.
between September 2021 and January 2022, mother did not feel like she needed to
explain why she did not visit, and mother believed that J.R. was coming home so “she
went back to her life.” The court also considered reports of mother’s marijuana usage
and mother smelling of marijuana when JFS removed J.R. and during a visit at St.
Joe’s. The court further considered mother’s refusal to sign an ROI, complete a
diagnostic assessment, or submit to urine screens. It noted mother’s testimony that
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OHIO FIRST DISTRICT COURT OF APPEALS
she “was not about to inconvenience [her] life for [JFS],” and that mother did not
believe that it was necessary to communicate with J.R.’s medical team about the care
plan.
{¶48} Among other factors, the court considered J.R.’s interactions and
relationships under R.C. 3109.04(F)(1)(c). First, while grandmother had testified to
the steps that she took to ensure that she could properly care for J.R., granting custody
to grandmother was not an option before the court. Second, mother’s testimony did
not show insight into J.R.’s needs and concerns with the child’s care, noting that, even
if mother’s testimony as to why she smelled of marijuana during a visit and that she
usually sprays her clothes down after being exposed to the smell were true, the fact
that she had to be reminded that strong smells can have an adverse effect on J.R.’s
respiratory system showed a lack of insight. Third, the court reiterated concerns that
mother had stopped visiting J.R. and did not know that she needed to state a reason
behind it. Fourth, the court noted mother’s refusal to sign the ROI so that JFS could
provide her case-plan services. The court expressed concern regarding mother’s
behaviors and actions because they showed that mother was not dedicated to caring
for J.R.
{¶49} After considering all relevant factors, the court determined that it was
in J.R.’s best interest to grant legal custody to K.H. Mother appealed.
II. Law
A. Standard of Review
{¶50} When determining the appropriate disposition for a child adjudicated
dependent, the juvenile court may “[a]ward legal custody of the child to either parent
or to any person” that moves for legal custody. R.C. 2151.353(A)(3). The juvenile
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OHIO FIRST DISTRICT COURT OF APPEALS
court’s award of legal custody of J.R. to K.H. vested her with certain caretaking and
decision-making rights. In re D.L., 1st Dist. Hamilton No. C-220448, 2023-Ohio-1125,
¶ 13; see R.C. 2151.011(B)(21). “[A]n award of legal custody of a child does not divest
parents of their residual parental rights, privileges, and responsibilities.” In re A.W.,
1st Dist. Hamilton No. C-140142, 2015-Ohio-489, ¶ 9.
{¶51} The juvenile court’s decision to grant or deny legal custody “must be
determined according to the best interest of the child.” Id. at ¶ 19. Because mother
retained her residual parental rights, privileges, and responsibilities, we review the
juvenile court’s decision for an abuse of discretion. In re D.L. at ¶ 14. To find that the
juvenile court abused its discretion, the court’s decision must be unreasonable,
arbitrary, or unconscionable. Id. In the context of legal-custody decisions, best-
interest findings are reasonable if supported by competent and credible evidence. Id.
The juvenile court did not abuse its discretion
{¶52} Mother argues that the juvenile court’s judgment awarding legal
custody of J.R. to K.H. is not supported by the evidence.
{¶53} We have no reason to doubt the magistrate’s finding that mother loves
J.R. But we agree with the juvenile court that granting custody of J.R. to K.H. is in
J.R.’s best interest.
{¶54} The juvenile court’s factual findings are based on a plethora of credible
evidence. JFS’s complaint alleged that mother left J.R.’s care to the nurses and smoked
marijuana to the point of being unable to wake up and care for J.R. Moreover, mother
refused to submit to drug tests. The court’s concern regarding mother’s marijuana use
is valid.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶55} The record is replete with reports of mother’s outbursts, poor decisions,
and refusal to communicate or cooperate with JFS and St. Joe’s. She refused to follow
the recommendations of J.R.’s nursing team. She failed to engage in case-plan
services, other than visitation, in which she eventually stopped engaging as well. She
refused to sign a ROI and therefore never engaged in services. Mother never submitted
to drug screens. Mother showed no interest in working with J.R.’s medical staff and
JFS.
{¶56} The fact that mother abruptly removed J.R. from the home that J.R.’s
medical team approved without the equipment necessary to keep her alive shows a
lack of care for J.R.’s well-being, especially because mother downplayed the incident
and argued that she had what J.R. needed.
{¶57} Mother’s failure to visit J.R. for months constitutes competent, credible
evidence that mother did not alleviate JFS’s concern that J.R. lacked adequate
parental care and that her condition or environment warranted the agency’s
intervention. Mother’s explanation that she did not feel visits were necessary because
J.R. would be coming home shows a serious lack of insight into her child’s needs. And
Mother only began visiting J.R. again when the hearings on JFS’s motion to grant
custody to K.H. began. Even then, mother did not visit the child consistently.
{¶58} K.H. completed the requisite care training. And K.H. was the only family
member who consistently visited J.R. JFS had no concerns about K.H.’s ability to
adequately care for J.R. The juvenile court’s decision to award legal custody to K.H.
was not unreasonable, arbitrary, or unconscionable.
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III. Conclusion
{¶59} The juvenile court did not abuse its discretion by granting K.H. legal
custody of J.R. We overrule mother’s sole assignment of error.
Judgment affirmed.
BERGERON, P.J., and KINSLEY, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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