In re S.R. ( 2024 )

[Cite as In re S.R., 2024-Ohio-693.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
In the Matter of: : Case No. 23CA11
S.R. : DECISION AND
JUDGMENT ENTRY
Dependent Child. :
RELEASED 2/22/24
______________________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for appellant.
Jason Holdren, Gallia County Prosecutor, and Emily VanSickle, Gallia County Assistant
Prosecutor, Gallipolis, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} S.R.’s mother appeals a judgment of the Gallia County Court of Common
Pleas, Juvenile Division, granting permanent custody of S.R. to the Gallia County Job &
Family Services, a.k.a. Gallia County Children’s Services (the “Agency”). The mother
assigns one error asserting that the permanent custody award was against the manifest
weight of the evidence. For the reasons which follow, we overrule her assignment of error
and affirm the juvenile court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On August 18, 2021, the Agency filed a complaint alleging that S.R., born
September 25, 2017, was a dependent child. The complaint alleged that S.R. was in the
care and custody of her mother and stepfather. The biological father’s address was
unknown. The Agency had received a report in January 2021 that mother and stepfather
appeared to be “under the influence” and that the mother had admitted to using heroin
Gallia App. No. 23CA11 2
and methamphetamine. A safety plan was put in place at that time but ended in March
2021 due to significant progress on the case plan. However, afterwards mother tested
positive for fentanyl and stepfather had been pulled over in his vehicle “with a cap of
suspected illegal substances.” A second safety plan was put in place and S.R. was placed
with stepfather’s mother. All interactions between mother, stepfather, and S.R. were to
be supervised by stepfather’s mother. However, during an unannounced visit, the Agency
found S.R. in the unsupervised care of mother, stepfather, and an uncle. The complaint
alleged that mother was not in compliance with her drug treatment and had been
discharged from receiving services due to belligerent behavior. Neither mother nor
stepfather had a valid driver’s license, yet both had been observed driving with S.R. in
the vehicle. The complaint also alleged that neither mother nor stepfather have been
compliant in receiving their mental health treatment. The complaint requested a grant of
temporary custody to the Agency. The juvenile court granted temporary custody that day
and set the matter for an adjudication on September 9, 2021.
{¶3} On September 9, 2021, the juvenile court conducted an adjudication on
dependency. Mother admitted the allegation of dependency. The juvenile court accepted
the admission, found S.R. a dependent child whose guardianship should be assumed by
the state under R.C. 2151.04(C), and ordered that S.R. remain in the temporary custody
of the Agency. A month later, the juvenile court held a disposition hearing and mother
stated that she agreed with S.R. remaining in the temporary custody of the Agency while
she continued to work on completing the case plan. The biological father did not appear.
Thus, the juvenile court ordered S.R. to remain in the Agency’s custody and for mother
to complete the court-approved case plan.
Gallia App. No. 23CA11 3
{¶4} On December 9, 2021, the juvenile court held a review hearing and was
informed that mother was noncompliant with her case plan and had very little contact with
the Agency. The biological father did not appear and was not participating in the case
plan. The court ordered S.R. to remain in the temporary custody of the Agency and the
mother to continue to work on the case plan. Another review hearing was held in February
2022 at which the court was informed that mother was “now in drug rehab and back in
compliance with her case plan.” The biological father did not appear and was not
participating in the case plan. The court ordered S.R. to remain in the Agency’s custody
and for mother to continue to work on the case plan. At the April 2022 review hearing,
the court was informed that mother completed her 30-day in-patient drug treatment
program but has since tested positive for illegal drugs and has not obtained suitable
housing or income. The Agency recommended a 90-day in-patient drug treatment
program for mother. The juvenile court ordered S.R. to remain in the Agency’s custody.
{¶5} At a review hearing in June 2022, mother was making progress in drug
rehabilitation, but still had not found suitable housing or income. S.R. was ordered to
remain in the Agency’s custody. At an August 2022 review hearing, mother had
completed in-patient drug rehabilitation and found appropriate housing, but she had not
obtained employment or obtained a mental health evaluation or counseling. S.R.
remained in the Agency’s custody. At an October 2022 review hearing, the court found
that mother had obtained a mental health evaluation and was compliant with mental
health counseling, but “still needs to maintain sobriety, make repairs to and exterminate
her residence.” S.R. was ordered to remain in the Agency’s custody. However, at a
December 2022 review hearing, the court found that mother was not in compliance as
Gallia App. No. 23CA11 4
she was no longer attending mental health or drug counseling and was unemployed. The
Agency indicated that it would file for permanent custody if no progress was made. S.R.
was ordered to remain in Agency custody. At a February 2023 review hearing, the
mother’s status had not changed; she continued to be noncompliant with the case plan.
The biological father was located and awaiting transport to prison for 5 years.
{¶6} On March 16, 2023, the Agency filed a motion for permanent custody
pursuant to R.C. 2151.413, R.C. 2151.414 and 2151.415. In support of the motion, the
Agency contended that S.R. could not be placed with either parent within a reasonable
time, S.R. should not be placed with either parent, and S.R. has been in the temporary
custody of the Agency for 12 or more months or a consecutive 22-month period. In fact,
at the time of the motion, S.R. had been in the Agency’s custody for 18 months and 6
days. The Agency contended that mother was noncompliant with the case plan, struggled
with substance abuse issues throughout the case, failed to comply with mental or drug
counseling, was unemployed, only sporadically attended child visitation sessions, and
failed to have her residence assessed by the Agency since October 2022. The Agency
also stated that a foster parent had shown interest in adopting S.R. or becoming her legal
guardian. The court scheduled a hearing on the motion for May 2023. Prior to the
permanent custody hearing, an April 2023 review hearing was held, and the court found
that mother continued to be noncompliant with the case plan, had not engaged in mental
health counseling, and was unemployed, but had resumed drug counseling. Additionally,
prior to the permanent custody hearing, the guardian ad litem filed a report which
recommended S.R. be placed in the permanent custody of the Agency.
Gallia App. No. 23CA11 5
{¶7} The permanent custody hearing took place on May 2, 2023. Lindsey Wolfe
testified that she was employed with the Agency’s Ohio Start program, which is a
voluntary program for families with substance use issues that tries to keep families
together. Wolfe had been involved with S.R.’s case since January 2021 and the safety
plans that were implemented in early 2021 prior to the Agency’s application for temporary
custody. Wolfe testified that mother was not compliant with the safety plans, had failed
multiple drug screens, failed to comply with drug and mental health counseling, and was
transporting the child in a vehicle without a valid driver’s license. As a result, the Agency
applied for temporary custody in August 2021. Wolfe testified that the case plan required
mother to have a mental health evaluation and to be compliant with any mental health
medication and counseling requirements, complete random and scheduled drug
screenings, enroll in school or have employment, and maintain a clean, stable home
environment. Wolfe testified that mother did have a mental health evaluation but was not
compliant with the follow-up counseling. Mother also failed to gain employment, dropped
out of an education program, and has made no further progress. The mother had entered
a rehabilitation facility in Cincinnati; however, she had only entered the program the day
before the permanent custody hearing.
{¶8} Wolfe testified that mother also failed to establish safe, stable housing
throughout the case. Wolfe was not able to make steady contact with mother to be able
to see and approve the housing situation. Wolfe was able to perform one apartment
inspection but could not complete a full evaluation because she was unable to inspect the
bedrooms. In areas she could inspect, there were “clothes laying all over the floor. It
appeared very messy, hadn’t been cleaned.” Wolfe testified that mother was inconsistent
Gallia App. No. 23CA11 6
in her struggles with substance abuse, testing positive for illegal substances and failing
to show a commitment to her sobriety. Wolfe testified that mother’s visitations with S.R.
have “been on and off” with repeated no call, no shows. As a result, visitations were put
on hold until mother could establish a plan in place to show up for the visitations. Wolfe
was unable to assess mother’s parenting abilities due to the inconsistencies in visitation.
Mother never progressed beyond supervised visitation. Wolfe testified that she does not
believe S.R. could be returned to mother now or in the immediate future. The biological
father was in prison and Wolfe did not believe that custody of S.R. could be placed with
him at that time or the immediate future. The stepfather had not completed any of the
case plan. Wolfe testified that she believed it was in S.R.’s best interest to be placed in
the permanent custody of the Agency and that the Agency had made reasonable efforts
to prevent the removal of the child from the home. Wolfe testified that a teacher at S.R.’s
elementary school has stated that she is willing to do kinship placement and/or adoption
of S.R.
{¶9} Chelsey Kloes, the guardian ad litem, testified that she visited S.R. monthly,
but numerous meetings and conversations with mother failed because mother did not
respond to telephone calls. Kloes testified that mother was noncompliant with the case
plan and lacked commitment to sobriety and maintenance of sobriety. Kloes testified that
S.R. loves her mother and is disappointed that visitations with her were not consistent.
Mother was not visiting S.R. in January 2023 and had not visited S.R. prior to the
permanent custody hearing in May 2023. Kloes testified that there are no viable family
placement options, and, in her opinion, it was in S.R.’s best interest to be placed
permanently with the Agency.
Gallia App. No. 23CA11 7
{¶10} Mother testified that she was currently in a residential drug rehabilitation
center in Cincinnati, Ohio that allows for mother and child to be reunited while she is
staying there. Mother testified that she would love to have S.R. reunited with her while
she resides in the rehabilitation facility and is “willing to do whatever I can * * * to get
[S.R.] back home.” Mother testified that she did not understand the proceedings, “when
this began I kind of misunderstood. Like I had thought they was [sic] taking permanency
[sic] custody of her then. * * * I didn’t really realize I still had you know, more time to keep
her to myself.” She testified she enrolled into the Cincinnati rehabilitation program
because she was told “this is the end of the case plan. I don’t know what else that I can
do.” Mother agreed she had not made any progress in the last couple of months but it
was because she believed the Agency had already taken permanent custody of S.R. She
admitted she “kind of fell off” the case plan when the Agency talked about taking
permanent custody of S.R. Mother testified that if given more time, she would get back
involved with her case plan. Mother testified she gets along great with S.R. and they share
a mutual love of each other. Mother testified that she had telephone problems that made
it challenging for her to get in touch with the case worker and others.
{¶11} On May 26, 2023, the court issued a judgment entry granting the Agency
permanent custody of the child. The court found that S.R. had been in the temporary
custody of the Agency for 12 or more months of a consecutive 22-month period for
purposes of R.C. 2151.414(B)(1)(d). The court also found that it was in the best interest
of the child to award permanent custody to the Agency.
Gallia App. No. 23CA11 8
II. ASSIGNMENT OF ERROR
{¶12} Mother presents one assignment of error:
The trial court’s grant of permanent custody to the Gallia County Job and
Family Services Children’s Division was against the manifest weight of the
evidence.
III. LEGAL ANALYSIS
A. Permanent Custody Award
{¶13} In her sole assignment of error, mother contends that the permanent
custody award was against the manifest weight of the evidence. Mother asserts that her
testimony “strongly counters that of the Agency’s witnesses.” She argues that she
testified that she “misunderstood the status of the case and so gave up on the
reunification case plan.* * * Had she thought otherwise she would have tried harder, as
shown by her placing herself in rehab so close to the permanent custody hearing and in
a place where the child could live with her.”
B. Standard of Review
{¶14} “A reviewing court will not reverse a trial court’s judgment in a permanent
custody case unless it is against the manifest weight of the evidence.” In re C.S., 4th
Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21. We have explained:
“To determine whether a permanent custody decision is against the
manifest weight of the evidence, an appellate court must weigh the
evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving evidentiary conflicts, the trial
court clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed and a new trial ordered.” [In re T.J., 4th
Dist. Highland Nos. 15CA15, 15CA16, 2016-Ohio-163,] ¶ 25, citing Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
In reviewing evidence under this standard, we defer to the trial court’s
determinations of matters of credibility, which are crucial in these cases,
where demeanor and attitude are not reflected well by the written record.
Gallia App. No. 23CA11 9
Eastley at ¶ 21; Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d
1159 (1997).
In a permanent custody case the dispositive issue on appeal is “whether the
trial court’s findings * * * were supported by clear and convincing evidence.”
In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; R.C.
2151.414(B)(1). “Clear and convincing evidence” is “that measure or
degree of proof which is more than a mere ‘preponderance of the evidence,’
but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases and which will produce 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; State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273,
2016-Ohio-5725, 74 N.E.3d 419, ¶ 14. “[I]f the children services agency
presented competent and credible evidence upon which the trier of fact
reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of
the evidence.” In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
(First alteration added.) Id. at ¶ 21-22.
C. Statutory Framework and Analysis
{¶15} Under R.C. 2151.414(B)(1), a juvenile court may grant permanent custody
to a public children services agency if the court determines by clear and convincing
evidence that (1) any of the circumstances in R.C. 2151.414(B)(1)(a) through (e) apply,
and (2) it is in the best interest of the child. In this case, the juvenile court found that R.C.
2151.414(B)(1)(d) applied, i.e., “[t]he child has been in the temporary custody of one or
more public children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period * * *.” Mother does not dispute that the child was in the
temporary custody of the Agency for the requisite time; therefore, we must affirm the
permanent custody award unless the juvenile court’s best interest determination is
against the manifest weight of the evidence.
Gallia App. No. 23CA11 10
{¶16} R.C. 2151.414(D)(1) states:
In determining the best interest of a child * * * the court shall consider all
relevant factors, including, but not limited to, the following:
(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, including whether the child has been
in the temporary custody of one or more public children services agencies
* * * for twelve or more months of a consecutive twenty-two-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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28 of the
Revised Code or the date that is sixty days after the removal of the child
from home.
No one factor has “greater weight or heightened significance.” In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
1. Interactions and Interrelationships of the Child
{¶17} There is evidence to support the juvenile court’s finding that the child “has
bonded with a foster caregiver. There is a strong possibility of adoption.” While the child
had some relationship with the mother during the proceedings, there was evidence that
mother failed to attend visitation regularly and did not progress beyond supervised
visitation. Mother did not visit the child at all in the four months prior to the permanent
Gallia App. No. 23CA11 11
custody hearing. There is evidence to support the juvenile court’s finding that the mother
“demonstrated a lack of commitment towards [S.R.] by failing to regularly support, visit,
or communicate with the child when able to do so.”
2. Wishes of the Child
{¶18} The child was too young to express wishes.
3. Custodial History
{¶19} The child was removed from the mother’s custody when the child was three
years old. The child was in the temporary custody of the Agency for 12 or more months
of a consecutive 22-month period. At the time of the permanent custody hearing the child
had been in the Agency’s custody for over 18 months.
4. Legally Secure Permanent Placement
{¶20} The Ohio Revised Code does not define the phrase “legally secure
permanent placement,” but “this court and others have generally interpreted the phrase
to mean a safe, stable, consistent environment where a child’s needs will be met.” In re
M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. “A legally secure permanent
placement is more than a house with four walls. Rather, it generally encompasses a
stable environment where a child will live in safety with one or more dependable adults
who will provide for the child’s needs.” Id.{¶21} Evidence supports the juvenile court’s finding that a legally secure
permanent placement could not be achieved without a grant of permanent custody to the
Agency. The Agency presented evidence that the child has been doing well in the
Agency’s temporary custody and that a teacher at S.R.’s school is interested in adoption.
As the juvenile court found, the mother “has failed to remedy the problems that led to the
Gallia App. No. 23CA11 12
child’s removal.” Mother was struggling with substance abuse issues in January 2021
and continued to struggle with them throughout the case up to the May 2023 hearing.
Evidence also supports the juvenile court’s finding that “the child cannot and should not
be returned to the custody of either parent within a reasonable time.” The biological father
was incarcerated for a five-year term. The juvenile court noted that it was glad to hear
that mother was again in a rehabilitation program, but “she only entered the facility the
day before this permanent custody hearing.” Additionally, while the mother secured an
apartment during the proceedings, the Agency was not able to determine its suitability
due to the lack of communication from the mother. Therefore, there was evidence
supporting the juvenile court’s finding that the residence was “unsatisfactory.” The
juvenile court further noted that mother had been granted an additional six months in
which to complete the case plan, but despite this extra time, she had not succeeded.
Although mother testified that she was confused about the status of her case, she
appeared at numerous review hearings, had appointed counsel, and never expressed
confusion or asked questions. As the state correctly argues, every filing and journal entry
prior to the permanent custody hearing states that the child is in the temporary custody
of the Agency while the mother continues to work on the case plan of reunification.
Whether mother was truly confused or whether, as the state argues, her testimony was
“self-serving” is a question of credibility for the juvenile court’s determination. The juvenile
court was in the best position to judge credibility, and we defer to its credibility
determinations. In re C.S., 4th Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21.
Gallia App. No. 23CA11 13
5. R.C. 2151.414(E)(7) to (E)(11) Factors
{¶22} The juvenile court did not identify any factors in R.C. 2151.414(E)(7) to
(E)(11) and there is nothing in the record to indicate they are applicable to this case.
6. Totality of the Circumstances
{¶23} Based on the foregoing, we conclude the juvenile court’s best interest
finding is not against the manifest weight of the evidence. The Agency presented
competent and credible evidence upon which the court reasonably could have formed a
firm belief that a grant of permanent custody to the Agency was in the best interest of the
child. Accordingly, we conclude that the permanent custody award is not against the
manifest weight of the evidence, overrule the sole assignment of error, and affirm the
juvenile court’s judgment.
JUDGMENT AFFIRMED.
Gallia App. No. 23CA11 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.