In re D.M. , 2020 Ohio 3273 ( 2020 )

[Cite as In re D.M., 2020-Ohio-3273.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: D.M., L.W., and L.M. : APPEAL NO. C-200043
TRIAL NO. F15-2147X
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: June 10, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patrick Stapp,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Allison McWhorter,
Assistant Public Defender, for Appellee Guardian ad Litem for D.M., L.M. and L.W.,
Cynthia Daugherty, for Appellant Mother.
OHIO FIRST DISTRICT COURT OF APPEALS
Z AYAS , Judge.
{¶1} Appellant F.W. (“Mother”), appeals from the judgment of the
Hamilton County Juvenile Court that terminated her parental rights to her three
minor children, D.M., L.W., and L.M., and placed the children in the permanent
custody of the Hamilton County Department of Job and Family Services (“HCJFS”).
We reverse the juvenile court’s judgment and remand the cause for further
proceedings.
I. Facts and Procedural History
{¶2} This case is about the custody of three young children born to two
young parents. D.M was born on August 4, 2014, L.W. was born on July 5, 2015, and
L.M. born June 2, 2016. Mother was 15 when she had her first child, and the
children’s father, D.M., (“Father”) was 16.
{¶3} On September 10, 2015, HCJFS filed a complaint and motion for an
interim order of custody for L.W. and D.M., claiming that the parents were not able
to adequately provide care or protect the health and well-being of the children. In
support, the agency alleged that L.W., who was born premature at 26 weeks, tested
positive for marijuana at birth, and that while Mother was in the hospital with L.W.,
she was unable to account for the whereabouts of her older child, D.M., except to
state that he was staying with an uncle. L.W. remained in the NICU at Cincinnati
Children’s Hospital at the time of the agency’s filing. The motion was amended to
include Mother, as Mother was also a minor.
{¶4} The motion was granted, and a case plan was entered regarding D.M.
and L.W. on November 6, 2015. The case plan required Mother to participate in a
diagnostic assessment to determine whether there was “the need for intervention
specific to mental health deficits, cognitive deficits and use of controlled substances.”
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The agency was concerned that Mother may have had issues beyond immaturity.
Mother was also required to participate in random urine screens scheduled by
HCJFS and was permitted weekly visitation with her children.
{¶5} Following a hearing, D.M. and L.W. were adjudicated dependent on
January 12, 2016. The magistrate’s dependency finding was based on the allegations
in HCJFS’s initial complaint. An allegation of neglect was dismissed. Neither parent
appealed this adjudication.
{¶6} On June 2, 2016, L.M. was born. HCJFS filed a motion for temporary
custody of L.M., alleging that Mother had not received any prenatal care until her
30th week and that Mother had not made much progress on the case plan with
respect to D.M. and L.W. The magistrate granted the motion, noting that Mother
was still a minor and her mother, T.W., (“maternal grandmother”) was not present at
the hospital, had her phone turned off, and had not spoken to her 17-year-old
daughter for several days.
{¶7} On August 8, 2016, a Semiannual Administrative Review (“SAR”)
indicated that Mother had completed the required diagnostic assessment of function
and was recommended for individual therapy. Mother was referred to St. Joseph
Orphanage for therapy services and was paired with a parenting coach at Beech
Acres Parenting Center (“Beech Acres”). Mother participated in eight random urine
screens, all of which were negative.
{¶8} On September 22, 2016, the court held a hearing pursuant to In re
Young Children, 76 Ohio St.3d 632, 669 N.E.2d 1140 (1996), regarding the court’s
continuing jurisdiction over the case once the statutory time had expired for the
extension of temporary custody under R.C. 2151.415. The court found that it did
have continuing jurisdiction to make dispositional orders in the best interest of the
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children, as the “situation from which they originally needed protection” had not
been resolved. See In re Young Children at 638.
{¶9} On October 6, 2016, the magistrate granted HCJFS’s motion to extend
temporary custody of all three children, remarking that “all of the issues that led to
the children being removed from the mother’s care and custody have not been
alleviated. Mother has three children and will turn 18 [on October 11].” The
magistrate’s entry also noted: “While mother did not test positive for marijuana
when [L.M.] was born, and may not be using at this time, she previously tested
positive for marijuana at the older two children’s births when she was only 15 and 16
years of age.” The magistrate questioned Mother’s maturity level, her parenting
abilities, and her ability to adequately provide a safe and secure environment for
three children while still not quite an adult. Questions also remained about her
relationship with Father, and the magistrate was concerned about the lack of
information regarding maternal grandmother’s ability to provide a safe and secure
home for Mother and her children based on HCJFS’s reporting that maternal
grandmother had a history of substantiated abuse to her own children.
{¶10} On November 15, 2016, L.M. was adjudicated dependent. This finding
was based on the testimony of HCJFS case manager Juliana Moxley, medical records
confirming limited prenatal care, and evidence that Mother tested positive for
marijuana in April of 2016. Neither parent appealed this adjudication.
{¶11} On February 14, 2017, a case plan was entered for all three children.
This plan noted that neither parent was fully engaging in the case-plan services, and
that HCJFS did not approve of maternal grandmother’s “relative home study.”
(Maternal grandmother had filed for custody of the children, whereupon a home
study for placement was initiated by HCJFS.) According to the case plan, “the
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OHIO FIRST DISTRICT COURT OF APPEALS
conditions for return are [Mother] must demonstrate appropriate parenting skills
and knowledge to meet their developmental and medical needs. The parents must
demonstrate substance sobriety. [Mother] must demonstrate mental health stability
and compliance. [Mother] must obtain appropriate parenting skills and knowledge.”
{¶12} On March 14, 2017, the magistrate again extended temporary custody.
In her entry, the magistrate noted that HCJFS was providing the following services
to make it possible for the children to return home: (a) therapeutic foster care
placement (by placing the siblings together), (b) parenting education for both Father
and Mother, (c) supervised visitation for both parents, (d) individual counseling for
Mother, and (e) random toxicology screens for both parents.
{¶13} On May 4, 2017, HCJFS moved for permanent custody for all three
children. The agency alleged that the children cannot and should not be placed with
either of the parents because the parents have failed continuously and repeatedly to
remedy the conditions causing the children to be placed outside the home, the
parents have demonstrated a lack of commitment toward the children, and “[t]here
has not been sufficient progress through case plan services to return the children
home to a safe and stable environment.”
{¶14} The July 19, 2017 SAR indicated that Mother had completed a
diagnostic assessment, was diagnosed with persistent depressive disorder, and was
attending weekly therapy. The SAR also noted that Mother had completed parenting
education classes through Beech Acres and received a certificate of completion in
May of 2017. Additionally, because Mother had completed randomized drug screens
and tested negative, concerns for substance abuse were thereafter removed from the
case plan. The review noted that “some progress” had been made towards
addressing the concerns regarding placement of the children.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} After several continuances (at Father’s request), a permanent-custody
trial took place before a magistrate in June of 2018. There were two days of
testimony. Mother was scheduled to testify during the second day of testimony. She
was unable to attend due to transportation issues, and her counsel requested a
continuance, which was denied. The hearing proceeded in Mother’s absence. The
magistrate granted HCJFS’s motion for permanent custody, finding that D.M. and
L.W. had been in the custody of HCJFS for 12 or more months of a consecutive 22-
month period, that L.M. could not be placed with either parent within a reasonable
time or should not be placed with them, and that permanent custody to HCJFS was
in all of the children’s best interest.
{¶16} Mother filed objections to the magistrate’s decision, and personally
appeared to defend her objections and testify. However, the juvenile court affirmed
the magistrate’s decision without taking testimony.
{¶17} Mother appealed the juvenile court’s judgment, and on March 20,
2019 we reversed the judgment and remanded the cause, holding that the juvenile
court erred in denying mother’s request to testify at trial. See In re M/W, 1st Dist.
Hamilton No. C-180623, 2019-Ohio-948.
{¶18} Upon remand, Mother’s counsel requested that she be allowed to
resume visitation with her children. The reversal effectively reinstated the case to
before permanent custody was granted, at which time Mother had weekly visitation
with her children. See id.; In re G.N., 176 Ohio App.3d 236, 2008-Ohio-1796, 891
N.E.2d 816, ¶ 12 (12th Dist.). Despite this, and the court indicating that it would take
up the issue at the next hearing, the court never permitted Mother to resume
visitation.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} On August 13, 2019, Mother was able to testify and present additional
evidence to rebut HCJFS’s motion to modify temporary custody to permanent
custody. Following her cross-examination, Mother read to the magistrate a
statement that she prepared describing the steps she had taken throughout the case
for the return of her children. Shortly thereafter, the magistrate committed all three
children to the permanent custody of HCJFS. The juvenile court affirmed the
magistrate’s decision over Mother’s objections. Mother now appeals.
II. Analysis
{¶20} In her sole assignment of error, Mother argues that the juvenile court
erred by granting HCJFS’s motion for permanent custody. Mother contends that the
judgment is not supported by sufficient evidence and is against weight of the
evidence. In her supporting argument, Mother argues that she completed her case
plan and remedied the conditions that caused her children to be removed, and that
HCJFS’s evidence to support permanent custody was sparse, incomplete, and
outdated.
A. Standards of Review
{¶21} In a review of permanent-custody cases “we will not substitute our
judgment for the trial court where some competent and credible evidence supports
the essential elements of the case.” In re A.B., 1st Dist. Hamilton No. C-150307,
2015-Ohio-3247, ¶ 14, quoting In re M.R., 1st Dist. Hamilton No. C-130401, 2013-
Ohio-4460, ¶ 5. “Our review for sufficiency asks whether some evidence exists on
each element. It is a test of adequacy, and whether the evidence is sufficient to
sustain the judgment is a question of law.” Id. at ¶ 15. Our review of the weight of
the evidence “asks whether the evidence on each element satisfies the burden of
persuasion, which in this case was a clear and convincing standard.” Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} “Clear and convincing evidence is evidence sufficient to produce in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be
established.” (Internal quotations omitted.) In re W.W., 1st Dist. Hamilton No. C-
110363, 2011-Ohio-4912, ¶ 46. “[W]e weigh the evidence and all reasonable
inferences, consider the credibility of the witnesses, and determine whether in
resolving conflicts in the evidence, the juvenile 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 A.B. at ¶ 16, citing Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517; State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d
541 (1997). However, we must be mindful of the presumption in favor of the finder
of fact. Eastley at ¶ 21, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
80, 461 N.E.2d 1273 (1984), fn. 3.
B. Permanent Custody
{¶23} R.C. 2151.414(B)(1) establishes a two-pronged test for courts to apply
when determining whether to grant a motion for permanent custody to a public
children services agency. The statute requires the court to find, by clear and
convincing evidence, that: (1) one of the enumerated factors in R.C.
2151.414(B)(1)(a)-(e) applies, and (2) permanent custody is in the best interest of the
child under R.C. 2151.414(D)(1)(a)-(e). See R.C. 2151.414(B)(1).
1. First Prong—R.C. 2151.414(B)
{¶24} The juvenile court determined, and the record confirms, that the first
prong of the permanent-custody test was satisfied as to D.M. and L.W., because the
children were in the temporary custody of HCJFS for 12 or more months of a
consecutive 22-month period.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶25} As to L.M., the juvenile court found that she could not be returned to
Mother within a reasonable time or should not be returned to her care. See R.C.
2151.414(B)(1)(a). In making this determination, the court found, under R.C.
2151.414(E)(1), that Mother failed to remedy the conditions that caused L.M. to be
placed outside the home. Consequently, we must review the record to determine
whether HCJFS established by clear and convincing evidence that, despite
reasonable case-planning efforts, Mother failed to substantially remedy the
conditions that caused the child’s initial and ongoing removal.
Reasons for Removal
{¶26} The reasons for L.M.’s initial removal from her Mother’s care are those
set forth in the adjudicatory decision. See In re M.P., 2015-Ohio-4417, 46 N.E.3d
221, ¶ 17 (9th Dist.). Here, the removal of L.M. was predicated on the lack of
progress on the case plan that Mother had for the return of D.M. and L.W. Some
evidence also went towards Mother’s living situation at the time and her relationship
with maternal grandmother, as Mother was still a minor when L.M. was born and
living with maternal grandmother, who by all accounts was an absent parent.
{¶27} The court reasoned that as L.M. was “brand new and at risk of serious
harm if she does not receive proper care” and because Mother made only limited
progress on the case plan with respect to D.M. and L.W., it was in L.M.’s best interest
to be placed in the temporary custody of HCJFS. At the time the court granted
temporary custody of L.M. to HCJFS, Mother had missed a urine screen, had not
completed therapy or parent-coaching sessions, and did not seem to be engaged in
parenting classes according to Beech Acres. There was no evidence before the
juvenile court to establish that L.M. had been removed from Mother’s care or
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OHIO FIRST DISTRICT COURT OF APPEALS
continued to be placed outside the home because of abuse or neglect. The juvenile
court only adjudicated L.M. dependent.
{¶28} Because L.M.’s removal was tied to the case plan involving her siblings,
we begin our analysis there. D.M. and L.W. were initially committed to the
temporary custody of HCJFS because L.W. was born prematurely and tested positive
for marijuana in her system, and because Mother was unable to account for the
whereabouts of D.M., except to state that he was staying with an uncle. Thereafter,
the court issued the following orders to Mother as part of the plan to reunify her with
her children: complete a diagnostic assessment, engage in individual therapy,
participate in random toxicology screens, complete parenting education, and attend
regular visitation.
Diagnostic Assessment, Therapy and Drug Screens
{¶29} As mentioned above, the record shows that Mother completed a
diagnostic assessment and was diagnosed with persistent depressive disorder in
April 0f 2017. Mother testified at trial that she had completed an updated diagnostic
assessment and submitted a letter from her therapist confirming her attendance at
33 sessions over the past year. Mother said that therapy was beneficial to her, and
that she only stopped attending when her assigned therapist left the organization
sponsoring the services. Mother had also participated in random toxicology screens
and was negative for all substances, so this requirement was removed from the case
plan as of July of 2017.
Parenting Education
{¶30} Mother completed parenting education classes and received a
certificate of completion in May of 2017. HCJFS case manager Juliana Moxley
testified at trial when asked, “of the case plan services that you have referred to,
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OHIO FIRST DISTRICT COURT OF APPEALS
starting with Mother, how many of those case plan services has Mother completed?
And by completed, I mean met the requirements stated in the case plan,” Moxley
answered, “One, the parenting.” Despite the certificate and Moxley’s testimony, the
juvenile court faults Mother for failing to complete a “parenting coaching”
component of parenting education. However, the record does not reflect that the
case plan required such a component. The magistrate’s decision merely notes that
Mother “was recommended for parenting coaching via Beech Acres.” A
recommendation is not sufficient to become a requirement under the statutory
provision for case plans.
{¶31} The procedures for the creation and amendment of a case plan are
statutorily mandated. See R.C. 2151.412; In re S.D-M., 9th Dist. Summit No. 27148,
2014-Ohio-1501, ¶ 26. R.C. 2151.412(F)(1) provides that “[a]ll parties, including the
parents, guardian, or custodian of the child, are bound by the terms of the
journalized case plan. A party that fails to comply with the terms of the journalized
case plan may be held in contempt of court.” “Any party may propose a change to a
substantive part of the case plan,” but the “party proposing a change to the case plan
shall file the proposed change with the court and give notice of the proposed change
in writing before the end of the day after the day of filing it to all parties and the
child’s guardian ad litem”—at which point any party can request a hearing on the
proposed change within seven days. R.C. 2151.412(F)(2).
{¶32} In Mother’s case plan for her children, she is described as needing
“parenting skills,” and the magistrate’s initial order adopting the case plan describes
the requirement as “parenting education.” While Dawn Merritt of Beech Acres
testified that parenting education services “entails parenting classes, parent
coaching, and parent liaison services for all of the families that were referred,” again,
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OHIO FIRST DISTRICT COURT OF APPEALS
the court characterized “parenting coaching” as a recommendation and never
journalized it as a requirement. Journalization is key, as it means written notice of
the proposed changes were provided to the parties, in keeping with a parent’s due-
process right to notice. See In re S.D-M. at ¶ 27.
{¶33} However, even while parenting coaching was a recommendation,
Mother participated in the service. Merritt testified that Mother met with two
different parent liaisons a number of times and participated in parent coaching while
at the Family Nurturing Center. Mother likewise testified to her interaction with
parent liaisons and participation in parenting coaching, and also to her voluntary
participation in most of the Fatherhood Project—a weekly parenting program
sponsored by the Talbert House—wherein she and the children’s father met with yet
another parent liaison.
{¶34} Because the record does not contain any notice regarding an additional
requirement of parenting coaching, and because Beech Acres could not have
unilaterally amended Mother’s case plan “by merely telling [her] to complete extra
tasks,” see In re S.D-M., 9th Dist. Summit No. 27148, 2014-Ohio-1501, at ¶ 26, citing
R.C. 2151.412(F)(2), we find that parenting coaching was not a requirement Mother
had to fulfill. The agency could certainly have requested a change to the explicit
requirements of the case plan, pursuant to R.C. 2151.412, as it did when it removed
the condition that Mother participate in random drug screens, but it did not. Again,
the determination of whether Mother completed the parenting-education component
of the case plan was squarely addressed by the agency case manager in the
affirmative. Therefore, the juvenile court’s determination that mother failed to
complete the parenting-education aspect of the case plan is not supported by clear
and convincing evidence.
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OHIO FIRST DISTRICT COURT OF APPEALS
Visitation
{¶35} In addition to addressing parenting education, Mother was required to
visit her children regularly to demonstrate her parenting skills. The magistrate’s and
juvenile court’s decision states that Mother did not attend regular visitation, and
when Mother did visit, she “struggled” to manage her children. The implication is
that by visiting infrequently Mother had little opportunity to demonstrate that she
could implement what she had learned through parenting education, and in fact
failed to show that she could adequately parent her children. The record does not
support these findings or the implication.
{¶36} HCJFS case manager Moxley testified at trial when asked “So it was
your testimony that [Mother] did visit the children regularly until April [of 2018]?”
answered, “Yes, she was visiting.”
{¶37} In contrast, foster father testified when asked how many visits per
month [Mother] had attended, “Over the past year. Let’s see here. I’d say roughly
maybe 60 percent of the visits. I’m not sure.” Foster father later said that 60 percent
was his estimate for Mother’s visitation over the life of the case. His testimony
appears to be the only basis for the magistrate’s finding that Mother “attended
approximately 60% of the supervised visits.” Foster father had been the placement
for all three children while they were in temporary custody and he and his wife
hoped to adopt the children.
{¶38} HCJFS did not submit visitation records from the Family Nurturing
Center. Mother acknowledged at trial that throughout the case she only
discontinued visitation for around two months when she was in Michigan with the
children’s father.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶39} While we are mindful of the presumption in favor of the factfinder, we
cannot ignore the disparity between the equivocating testimony of foster father and
the clear testimony of the agency case manager. Testimony that Mother attended
“roughly maybe 60 percent of the visits” coupled with “I’m not sure” does not
establish with firm belief or conviction Mother’s visitation schedule with her
children. We also cannot ignore the fact that the case manager testified under the
authority of HCJFS, which is statutorily responsible for preparing and maintaining
the case plan, including visitation. See R.C. 2151.412(A).
{¶40} The magistrate’s decision also indicated that Mother “struggled during
her supervised [visitation] managing all three children,” and noted that Merritt
described Mother as looking “uncomfortable by herself” during the visits. However,
Merritt’s observation and evidence that Mother “struggled” with her children was
dated and therefore hardly relevant. Merritt explained at trial that Mother looked
uncomfortable managing three small children by herself, stating “you know how
those small ones can be, and it was a lot of mom. It was a lot.” But based on Merritt’s
own testimony her observations were years ago, at a location no longer used for
family visitation. In any event, her observation is not especially revealing, as
managing three young children is difficult for anyone, as Merritt testified.
{¶41} The most recent evidence in the record demonstrating that Mother
“struggled” with all three children was from an email dated November of 2016, from
the visitation facilitator at the Family Nurturing Center. HCJFS submitted the email
as evidence at trial in June of 2018. The facilitator wrote:
Some areas of concerns that have been observed during the visit is
[Mother] having a challenging time managing all three children during
structured meal time and play in the large play area. FNC has assisted
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and coached [Mother] multiple times during their meal time. [D.M.]
frequently attempts to run out of the visitation space, kitchen area, and
large play area. [Mother] will tell [D.M.] to stay in the space when he
tries to leave however the facilitator consistently models blocking the
exit so [D.M] is not able to leave. With coaching and prompting from
the facilitator [Mother] has been able to retrieve him[.] [A]t time when
he does make it how however [sic] generally the retrieval of [D.M.] is
managed by a facilitator.
The children’s ages at the time the email was written were 26 months, 16 months,
and five months. Again, besides being a dated, this observation is not particularly
revealing. It does not support the magistrate’s finding that Mother “struggled”
outside of circumstances in which it is normal to struggle, as organizing mealtime
with three young children is simply difficult for anyone. In fact, the email shows that
Mother put into practice parenting coaching tips during visitation with the children,
and generally got things under control.
{¶42} “[A] motion for permanent custody must allege grounds that currently
exist.” In re C.W., 104 Ohio St.3d 163, 167, 818 N.E.2d 1176 (2004), citing In Re
K.G., 9th Dist. Wayne No. 03CA0066, 2004-Ohio-1421, ¶ 13. HCJFS’s evidence that
Mother struggled to manage her three young children was from at least seven
months prior to the filing of the motion. The evidence was outdated and
unconnected to the reasons L.M. was removed. At the time the motion was filed,
L.M. was older and did not need the care associated with a newborn, which was a
major concern at the time of her placement into temporary custody. HCJFS simply
did not submit evidence to support the conclusion that Mother could not provide
care to a toddler.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} Based on this record, at the time the agency moved for permanent
custody of L.M. in May of 2017, Mother had nearly completed her case plan for the
return of D.M. and L.W. She completed a diagnostic assessment, was engaged in
individual therapy, completed required parenting education and received proof of
completion, participated in random drug screens and consistently tested negative,
and, according the HCJFS case manager, regularly visited with her children. Thus,
HCJFS’s allegations that Mother failed to remedy the problems that caused
removal—an allegation that was based on the progress of her case plan for the return
of D.M. and L.W.—is not supported by the record.
Stable Housing and Income
{¶44} Mother’s housing and income were also noted in the initial removal
order as issues of concern. However, when this case began, Mother was a minor and
necessarily relied on her mother for housing and income. Mother cannot be
condemned for not having reached the age of majority until more than a year into
this case. Mother is now and was at the time of the permanent placement hearing a
mature adult. She did what she was required to do by the agency for the return of
her other two children, which served as the basis for the removal of L.M.
{¶45} The magistrate’s decision even states:
[Mother] is now 20 years old. She dropped out of high school but has
obtained her GED. She currently works 2 jobs and shares housing
with her mother and sisters. She has had some training in nursing and
desires to be a midwife. There is no doubt that [Mother] has matured
in the many years since this case has been pending. She is making
great strides in her life and should be proud of herself.
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OHIO FIRST DISTRICT COURT OF APPEALS
The magistrate and ultimately the juvenile court caveated this praise by finding it
“very recent”—i.e., too little too late—but we disagree, especially where Mother
satisfied a majority of her case-plan requirements before HCJFS moved for
permanent custody.
{¶46} Accordingly, our review of the record fails to reveal clear and
convincing evidence to support the juvenile court’s findings with regard to the first
prong of the test that L.M. cannot or should not be placed with Mother based on a
consideration of the factors enunciated under R.C. 2151.414(E)(1). This court does
not reach the best-interest prong of the permanent-custody test with regards to L.M.,
but we must continue our analysis for D.M. and L.W.
2. Second prong—R.C. 2151.414(D)(1)
{¶47} Under the second prong, the juvenile court must determine whether
granting permanent custody to the agency is in the best interest of the children. See
R.C. 2151.414(B)(1). “Unlike factual first-prong permanent custody grounds that can
be established at a finite point in time, the child’s best interest is a fluid concept, as it
involves the child’s continually-changing need for appropriate care.” (Internal
citation omitted.) In re G.L.S., 9th Dist. Summit No. 28874, 2018-Ohio-1606, ¶ 16.
Pursuant to R.C. 2151.414(D)(1), the court may find that permanent custody is in the
best interest of a child upon consideration of all relevant factors, including,
(a) the child’s relationships with the parents, siblings, foster
caregivers, and any other person who may significantly affect the child,
(b) the wishes of the child, with consideration granted for their
maturity,
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(c) the custodial history of the child, including whether the child has
been in the custody of a public child services agency for 12 or more
months in a consecutive 22-month period,
(d) the child’s need for a legally secure permanent placement, and
(e) whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
No single factor 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.
Best Interest
{¶48} As for what would be in the children’s best interest, the juvenile court
again focused on visitation and the alleged incompleteness of the case plan, with an
almost token consideration of the statutory factors.
{¶49} We do not mean to minimize the juvenile court’s concern about
Mother’s ability to parent her children. However, the Ohio Supreme Court has long
held that “parents who are suitable persons have a ‘paramount’ right to the custody
of their minor children,” In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977),
and courts have described permanent termination of parental rights as “the family
law equivalent of the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d
1, 16, 601 N.E.2d 45 (6th Dist.1991); see In re D.A., 113 Ohio St.3d 88, 2007-Ohio-
1105, 862 N.E.2d 829. The fundamental interest of parents is not absolute, but “the
termination of parental rights should be an alternative of ‘last resort.’ ” In re D.A. at ¶
10, quoting In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). The
evidence adduced at the trial in this case does not clearly and convincingly
demonstrate that permanent custody is the only means by which to provide a legally
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OHIO FIRST DISTRICT COURT OF APPEALS
secure permanent placement for these children, and thus termination of Mother’s
parental rights was not in their best interest.
{¶50} From the onset of this case, HCJFS was concerned with dependency,
see R.C. 2151.04—i.e., whether the children had adequate parental care as the
children were born to child-parents. The record is devoid of any evidence of abuse or
neglect, even for Mother’s eldest child, D.M., who was in her custody until after his
first birthday, while her other two children were removed straight from the hospital.
To that end, HCJFS originally filed a case plan for the return of Mother’s children
that focused on addressing concerns over Mother’s possible limited cognitive
functioning and substance abuse. These issues were ultimately unfounded or
deemed cured—Mother did not have cognitive delays but was simply immature, and
Mother stopped using marijuana. Moreover, as discussed above, Mother completed
the otherwise-required aspects of the case plan. Nevertheless, the juvenile court
terminated her parental rights.
{¶51} The juvenile court found that R.C. 2151.414(D)(1)(a) was satisfied,
explaining that the children have had only one foster placement for nearly four years
to which they are bonded. However, the record is clear that the children are bonded
with both their foster family and Mother. And, the case extended to four years
through no fault of Mother’s. For instance, Mother was a minor and thus could not
have independently demonstrated stable housing and income until reaching the age
of majority, Father requested numerous continuances, and the juvenile court erred
in denying Mother a continuance to attend and testify at the first trial setting, which
required a time-consuming appeal that ultimately led to a reversal and remand.
{¶52} In support of its finding that R.C. 2151.414(D)(1)(b) was satisfied, the
juvenile court cited the GAL’s belief that permanent custody was in the best interest
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OHIO FIRST DISTRICT COURT OF APPEALS
of the children. While subsection (b) addresses the wishes of the child, not the GAL,
see In re M.U., 1st Dist. Hamilton Nos. C-130809 and C-130827, 2014-Ohio-1640, ¶
15, the GAL noted that the children are too young to express their wishes.
{¶53} The juvenile court found that R.C. 2151.414(D)(1)(c) was satisfied by
the 12-of-22 condition as to D.M. and L.W. The record supports this finding—D.M.
and L.W. were placed in temporary custody on September 10, 2015, adjudicated
dependent January 12, 2016, and HCJFS filed its motion for permanent custody on
May 4, 2017.
{¶54} In support of the finding that R.C. 2151.414(D)(1)(d) was satisfied, the
juvenile court explained that
[t]he children cannot achieve permanent placement without a grant of
permanent custody to HCJFS. The parents have failed to maintain
contact with HCJFS and other service providers, they have not
completed all case plan services, and they did not visit the children
regularly. The parents have had almost four years to complete case
plan services and have not done so. The children are bonded to the
foster family. The foster family desires to adopt. HCJFS knows of no
impediment to the foster family adopting the children.
As described earlier, the evidence did not support the conclusion that Mother did not
complete her case plan. Moreover, as relevant to a legally secure placement, an
Interstate Compact for the Placement of Children (“ICPC”) was never completed by
HCJFS, when the agency had agreed to submit an ICPC report to the juvenile court at
trial. Mother testified that neither HCJFS nor the guardian ad litem came to her
home in Kentucky. This is despite the fact that the determination on permanent
custody had been reversed by this court in March and that Mother provided her new
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OHIO FIRST DISTRICT COURT OF APPEALS
address to HCJFS through her attorney in May. How could the juvenile court make a
determination on whether the children had a legally secure permanent placement if
HCJFS did not investigate the placement and prove that it was insufficient? After all,
the state had the burden of proof. See Santosky v. Kramer, 455 U.S. 745, 759, 102
S.Ct. 1388, 71 L.Ed.2d 599 (1982). While “a legally secure permanent placement is
more than a house with four walls,” In re P., 1st Dist. Hamilton No. C-190309, 2019-
Ohio-3637, ¶ 42, surely the term “placement” must still require looking at the literal
place where a child would live.
{¶55} More importantly, a legally secure placement also “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.” See id. HCJFS has not
demonstrated that Mother cannot provide that. Rather, the juvenile court found that
Mother is now a mature adult with stable employment and stable housing. Having
aged out of infancy and toddlerhood, the children are also more mature. There was
never a concern for abuse or neglect of these children. And, none of Mother’s
children have special needs or specific care that the agency demonstrated Mother
could not provide. Furthermore, the evidence demonstrated that Mother completed
the case plan—“the primary reunification tool of children services agencies as
contemplated by Chapter 2151.” See In re S.D-M., 9th Dist. Summit No. 27148,
2014-Ohio-1501, at ¶ 29.
{¶56} Under the circumstances presented in this case, we cannot conclude
that HCJFS demonstrated by clear and convincing evidence that the termination of
Mother’s parental rights was warranted. Consequently, we conclude that the trial
court erred in terminating Mother’s parental rights and in placing D.M., L.W., and
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OHIO FIRST DISTRICT COURT OF APPEALS
L.M. in the permanent custody of HCJFS. Mother’s sole assignment of error is
sustained.
Conclusion
{¶57} The judgment of the Hamilton County Juvenile Court is reversed, and
the cause is remanded for further proceedings consistent with this opinion. We note
that Mother’s parental rights were wrongfully terminated and Mother has gone
without seeing her children for nearly two years, and therefore encourage the
juvenile court to act expeditiously in carrying this judgment into execution.
Judgment reversed and cause remanded.
B ERGERON and C ROUSE , JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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