In re K.M. , 2024 Ohio 2137 ( 2024 )

[Cite as In re K.M., 2024-Ohio-2137.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
K.M., : No. 23AP-168
(C.P.C. No. 18JU-10094)
(K.E., Mother, :
(REGULAR CALENDAR)
Appellant). :
In the Matter of: :
T.M., aka K.M., : No. 23AP-169
(C.P.C. No. 19JU-10948)
(K.E., Mother, :
(REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on June 4, 2024
On brief: Yeura R. Venters, Public Defender, and Robert D.
Essex, for appellant.
On brief: Sharon K. Carney for Franklin County Children
Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
EDELSTEIN, J.
{¶ 1} Appellant, K.E., mother of K.M. and T.M.,1 appeals from the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
terminating her parental rights and placing K.M. and T.M. in the permanent custody of
1 The court filings also refer to the younger child as K.M. but for sake of clarity, the decision will refer to him
as T.M.
Nos. 23AP-168 & 23AP-169 2
appellee, Franklin County Children Services (“FCCS”). For the following reasons, we
affirm.
I. Facts and Procedural History
{¶ 2} These cases involve separate, consolidated appeals from two juvenile court
judgments granting FCCS permanent court commitment (“PCC”) of appellant’s two minor
children, K.M., born in December 2015, and T.M., born in September 2019. The father of
K.M., who is also the alleged father of T.M., has not filed appeals and, therefore, the
following facts are generally limited to those relevant to appellant.
{¶ 3} FCCS became concerned with K.M.’s wellbeing in June 2018, and initially
filed a complaint alleging substance abuse and domestic violence under a prior case
number.2 K.M. was placed in the custody of FCCS on August 22, 2018. With the prior case
set to expire by operation of law, FCCS filed a new complaint on August 28, 2018 alleging
K.M. was a dependent child pursuant to R.C. 2151.04(C). The complaint cited concerns
with domestic violence, appellant’s potential substance abuse and lack of consistent drug
screenings, appellant’s untreated mental health issues, appellant’s lack of employment,
unstable housing, and K.M.’s unaddressed developmental delays. The trial court granted
FCCS a temporary order of custody under the new case number and the parents were
ordered to participate in random drug screens and a domestic violence assessment,
including following any recommendations.
{¶ 4} At trial on October 22, 2018, appellant did not contest the dependency count,
and the court found K.M. to be a dependent child pursuant to R.C. 2151.04(C). The court
granted a temporary court commitment to FCCS and ordered the parents to comply with
the case plan. FCCS initially filed a motion for permanent custody of K.M. on June 27,
2019, which alleged the parents had not remedied the conditions that caused K.M. to be
removed and they had failed to complete their case plans.
{¶ 5} FCCS then became involved with K.M.’s sibling, T.M., immediately upon
T.M.’s birth in September 2019. FCCS filed a complaint on September 19, 2019, amended
a day later, alleging T.M. was an abused child pursuant to R.C. 2151.031(C) and (D), a
neglected child pursuant to R.C. 2151.03(A)(2), and a dependent child pursuant to R.C.
2 See 18JU-6840.
Nos. 23AP-168 & 23AP-169 3
2151.04(C) and (D). Among other matters, the complaint alleged T.M. was born with drugs
in his system, suffered withdrawal, and required hospitalization in the NICU, the parents
had not addressed their serious chemical dependency and mental health issues or secured
stable housing, and appellant was not employed. After a hearing, FCCS was granted a
temporary order of custody and the matter came for trial on December 3, 2019. The parties
did not contest the two counts alleging abuse, and the state requested the court dismiss the
other three counts. The court found T.M. to be an abused child pursuant to R.C.
2151.031(C) and (D) and set the matter for a dispositional hearing.
{¶ 6} FCCS filed two additional PCC motions seeking permanent custody of K.M.,
dated December 6, 2019 and March 16, 2022. The latter motion was based on R.C.
2151.414(B)(1)(a) and (B)(1)(d) and the parents’ failure to comply with their case plans. As
to T.M., FCCS filed two PCC motions, dated August 14, 2020 and March 21, 2022, with the
most recent motion also premised on R.C. 2151.414(B)(1)(a) and (B)(1)(d) and the parents’
failure to comply with their case plans.
{¶ 7} Following multiple continuances, the matter came before the trial court in a
consolidated trial on December 5, 2022. Although the parents were notified about the
hearing, neither parent appeared. Appellant’s counsel communicated with appellant by
text message, and appellant said she had a doctor’s appointment. Appellant did not utilize
a taxi ordered by the trial court to assist her in getting to the hearing. With counsel for both
parents present, the trial court commenced the trial. Four witnesses testified: Rachelle
Gallagher, a caseworker supervisor for FCCS; T.L., the foster mother for K.M.; L.G., the
foster mother for T.M; and Michael J. Lerner, the guardian ad litem (“GAL”).
{¶ 8} Ms. Gallagher testified that FCCS became involved with appellant and K.M.
due to a domestic incident. FCCS also became concerned with how appellant was caring
for K.M., noting K.M. was behind developmentally and appellant did not take him to
routine doctor’s appointments. K.M. was removed from appellant’s care in August 2018
and placed with a relative for a short time before receiving a foster placement with T.L. and
her family, with whom K.M. still resides.
{¶ 9} As to T.M., Ms. Gallagher testified that FCCS became involved with him
almost immediately after his birth in 2019. FCCS received concerns of physical abuse after
he tested positive for marijuana, suboxone, nicotine, lidocaine, and gabapentin at birth.
Nos. 23AP-168 & 23AP-169 4
T.M. experienced withdrawal from those substances, including tremors, high respiration
rate, wheezing, an inability to self-sooth, and excessive sucking. T.M. was removed from
appellant’s care shortly after he was born and placed in foster care. T.M. has had the same
foster care placement with L.G. and her family since his removal as an infant.
{¶ 10} Ms. Gallagher testified that FCCS established a case plan for appellant with
the following objectives: complete a domestic violence assessment; complete a drug and
alcohol assessment; complete a mental health assessment; complete random drug screens;
complete parenting classes; have a legal source of income; and maintain safe and stable
housing. She added that an additional part of the case plan required appellant to attend
the children’s medical appointments so she would know how to properly care for the special
needs of the children if they were returned to her home.
{¶ 11} According to Ms. Gallagher, appellant completed a domestic violence
assessment in early 2019, which resulted in a recommendation to undergo mental health
counseling services. At the time of trial, appellant was receiving services through an
approved agency, including weekly counseling sessions. Although appellant signed a
release of information with the agency, FCCS had received only a letter from the agency
saying appellant was compliant with services but did not receive the requested assessment
and records.
{¶ 12} Ms. Gallagher testified that appellant also received drug and alcohol services
and drug screens through the same approved agency. FCCS again received a letter from the
agency saying appellant was compliant with services but did not receive the requested
assessments or drug screens. FCCS asked appellant to obtain her records regarding the
mental health counseling and drug and alcohol services, but appellant did not do so. Ms.
Gallagher noted the drug screens appellant had completed through another agency
returned positive for suboxone and marijuana. Appellant told FCCS that she had a valid
prescription for suboxone through her provider, but she never provided proof of the
prescription. Appellant additionally told FCCS she was “working on” getting a medical
marijuana card but never produced a card. (Dec. 5, 2022 Tr. at 45.) Appellant’s last drug
test occurred over a year prior to trial—September 21, 2021.
{¶ 13} Ms. Gallagher further testified that appellant completed parenting classes in
April of 2022. FCCS independently linked appellant with a parent mentor to assist her with
Nos. 23AP-168 & 23AP-169 5
handling her children’s special needs, but the mentor was not able to meet with appellant
due to appellant’s inconsistent visits with her children.
{¶ 14} As to visitations, Ms. Gallagher testified that, from June of 2021 to the trial
date, appellant had the opportunity to visit with the children 73 times. Ms. Gallagher
testified that appellant definitely attended 33 visits and may have attended 13 more for a
maximum total of 46 visits. Appellant had visited with the children two times since the
Labor Day prior to the December trial. Ms. Gallagher testified that reports from those visits
indicate K.M. felt comfortable with appellant and would do activities such as coloring with
her, but K.M. recognized his foster family as his parents and looked to them for comfort.
Younger sibling T.M. was reportedly also comfortable with appellant but lacked a bond with
her and also looked to his foster family for comfort. Both foster families are possible
adoptive homes, and the families regularly meet up for playdates to ensure the siblings
build a relationship with each other.
{¶ 15} According to Ms. Gallagher, both T.M. and K.M. have special needs that affect
their care. T.M. has been diagnosed with autism, is non-verbal, and receives physical
therapy, occupational therapy, and speech therapy. K.M. had been engaged in speech,
occupational, and physical therapy, as well as ongoing counseling to address emotional
regulation. Ms. Gallagher testified appellant did not meet the part of the case plan that
required her to attend the children’s doctor’s appointments to learn how to properly care
for their special needs despite FCCS providing appellant with the information to do so.
According to Ms. Gallagher, FCCS spoke to appellant about how she would care for the
special needs of the children and appellant responded, “I’ll deal with it when that time
comes.” (Tr. at 80.) In contrast, the foster families did address the special needs of the
children.
{¶ 16} Regarding employment and housing, Ms. Gallagher testified that appellant
reported she was employed at Hollywood Casino but did not provide paystubs as proof of
employment as requested by the agency. As recently as five months prior to trial, appellant
did not have stable housing and was staying with friends. In July 2022, appellant secured
an apartment that would be suitable for children. However, according to Ms. Gallagher, an
eviction notice was filed in November 2022, shortly before trial, and those proceedings
were pending in the Franklin County Municipal Court.
Nos. 23AP-168 & 23AP-169 6
{¶ 17} To aid appellant in achieving her case plan objectives, Ms. Gallagher testified
that FCCS provided appellant with referrals for drug and alcohol services, counseling
services, and parenting classes, and provided gas cards and monthly bus passes. FCCS
attempted to meet with the parents monthly to follow up on their progress, but the parents
did not show up to appointments and did not answer their door. Appellant has also not
consistently attended the FCCS semi-annual reviews. Overall, Ms. Gallagher
recommended the court grant permanent custody to FCCS due to the parents’ failure to
attend doctor’s appointments and not regularly visiting and bonding with the children.
{¶ 18} FCCS then called K.M.’s foster mother, T.L., to testify. According to T.L.,
K.M. was placed with her in August 2018 when he was two and one-half years old. Due to
certain behaviors and limited speech, she was concerned he had autism. He also had
trouble sleeping, snored, and had sleep apnea. T.L. sought help from physicians and
testified that her pediatrician was alarmed to the point he quickly connected them with a
Nationwide Children’s Hospital ear, nose, and throat specialist, who in turn immediately
scheduled him for surgery to remove his tonsils and adenoids, and to place tubes in his ears.
T.L. additionally took K.M. to have an autism assessment, where he was diagnosed with
developmental delay and global development delay, which included severe delays in fine
motor skills, speech, and sensory adaptive skills, and moderate delay in gross motor skills.
Due to the delays, K.M. was referred to mental and behavioral health services. To assist his
development and education, T.L. enrolled K.M. in an intervention pre-school in her
community school district. At the recommendation of the intervention pre-school, T.L.
postponed kindergarten a year to address K.M.’s developmental delays. T.L. also arranged
private speech therapy for K.M. T.L. testified she always kept the FCCS case manager and
the foster agency informed about K.M.’s appointments but, over four years, appellant only
attended once, when K.M. had tonsil surgery in 2018.
{¶ 19} T.L. testified that K.M. showed “phenomenal” improvement after these
interventions. (Tr. at 141.) K.M. is now expressive, active, and no longer needs speech,
occupational, or physical therapy. However, according to T.L., due to the trauma he
experienced, K.M. will always need mental health counseling and continues to attend
weekly counseling sessions. K.M. regresses occasionally, which T.L. testified last occurred
about five weeks prior to trial when K.M.’s birth parents failed to attend a scheduled
Nos. 23AP-168 & 23AP-169 7
visitation. In T.L.’s words, the parents’ failure to attend the visitation was “devastating” to
K.M. She explained that he cried and was “lashing around” and had problems in school the
following week. (Tr. at 148.) According to T.L., the parents would cancel visitations often,
and at one point in 2018, they went four months—from August to December—without any
visits. They would also arrive late to visitations. T.L. testified that K.M. looked forward to
the visits with the parents, appeared playful when he saw them, and was comfortable
approaching them.
{¶ 20} T.L. testified she and her husband are very bonded with K.M., who refers to
them as “mom” and “dad.” (Tr. at 159.) T.L. voluntarily completed a parenting training
course geared toward raising a child with special needs, and she is now able to sooth K.M.
using the techniques she learned from that program. K.M. and their biological eight-year-
old son play together and behave as though they are brothers. T.L. said she and her
husband have a friendly relationship with T.M.’s foster parents and they ensure K.M. sees
T.M. at least once a month. She testified she plans on continuing to build that relationship.
T.L. testified that she and her husband would “[m]ost adamantly, a hundred percent” want
to be considered as an adoptive placement for K.M. (Tr. at 162.)
{¶ 21} One of T.M.’s foster parents, L.G., testified next. According to L.G., T.M. was
placed with her when he was five days old upon his release from the hospital intensive care
unit. L.G. testified T.M. was born addicted to drugs, initially had severe tremors and
stiffness on the left side of his body, and has been very developmentally delayed his whole
life. L.G. sought resources to help T.M., including a “tremendous amount of physical
therapy,” speech therapy, occupational therapy, and “adaptive gym” through an
intervention facility in their school district. (Tr. at 178-79.) He additionally sees a speech
therapist at Nationwide Children’s Hospital once a week and is waiting to be scheduled for
an autism assessment and occupational therapy through the hospital. L.G. testified T.M.
can walk but requires ankle braces to counter weakness. T.M. continues to have severely
delayed language skills—at the time of trial he was working on two-word phrases as a three-
year-old—but L.G. believed his language was improving.
{¶ 22} According to L.G., T.M. has about one and a half doctor’s appointments per
week, which she informs the FCCS case manager about well in advance of each
appointment. She has never seen the biological parents attend any appointments. L.G.’s
Nos. 23AP-168 & 23AP-169 8
wife quit her full-time job to provide T.M. the care he needs, which includes getting him to
and from various appointments and pre-school.
{¶ 23} L.G. described T.M.’s scheduled visitations with his biological parents as “hit
and miss.” (Tr. at 177.) They had two visitations in the five months prior to the trial. They
declined an opportunity to visit T.M. when K.M. was sick. According to L.G., T.M. “melts
down” at the door when the parents arrive for their visits and won’t move until the
supervisor or K.M., who is also present at the visitations, convinces him to come inside.
(Tr. at 192.) L.G. testified that appellant “will have nothing to do with [T.M.]” when he is
upset and laying on the floor. (Tr. at 192.) During these visits, T.M. goes to his sibling K.M.
and eventually “warms up” to the parents. (Tr. at 192.) After each visit, T.M. runs into
L.G.’s arms.
{¶ 24} L.G. described her relationship with K.M.’s foster parents in familial terms:
they are all “related by circumstances because we know that for the rest of our lives we’re
gonna be spending time together assuming that we get the chance to adopt them.” (Tr. at
177.) The two families “get along * * * very well,” and L.G. makes sure T.M. spends time
with K.M. and his foster family, including birthdays and holidays. (Tr. at 177.) According
to L.G., T.M. is affectionate with both her and her wife, seeks them out for comfort, and is
bonded to both of them and to L.G.’s parents. T.M. is familiar and friendly with L.G.’s 18-
year-old former foster daughter, who visits them. L.G. testified that if T.M. becomes
available for adoptive placement, she would like to adopt him “[a] hundred percent.” (Tr.
at 189.)
{¶ 25} Finally, the GAL for both K.M. and T.M., Michael J. Lerner, testified.
According to the GAL, he interviewed appellant but had not conducted an investigation of
her residence. After several attempts, and due to the limited amount of visitations that
occurred, he did not get a chance to see K.M. interact with appellant. He visited K.M. at his
foster placement, which he described as “remarkable”—“it is [a] family.” (Tr. at 206.) The
GAL testified that K.M. considers his foster parents “mom and dad” and “loves his family
very much.” (Tr. at 206.) K.M. was able to communicate his wishes to the GAL and
expressed his desire to continue living with his foster family.
{¶ 26} The GAL described T.M., who was about three at the time, as delayed and
essentially non-verbal, but able to understand his surroundings, and interact appropriately,
Nos. 23AP-168 & 23AP-169 9
engage, and play with his foster family. According to the GAL, T.M. was not able to express
his wishes on placement or custody.
{¶ 27} The GAL testified that although appellant had completed some aspects of her
case plan, he nevertheless had “substantial concerns” regarding her ability to care for K.M.
and T.M. (Tr. at 215.) Considering the special needs of the children, he concluded it is a
“big deal” that appellant did not attend any medical appointments. (Tr. at 215.) He was
also concerned that appellant missed visitations with the children, had been unable to
maintain a residence, and was facing eviction at the time of trial. He recommended the
court grant permanent custody of both K.M. and T.M. to FCCS.
{¶ 28} The trial court issued its decision and judgment on permanent custody on
February 22, 2023. The trial court first determined that R.C. 2151.414(B)(1)(a) and
(B)(1)(d) applied as K.M. and T.M. could not and should not be placed with either parent
within a reasonable time and because both children had been in the continuous custody of
FCCS for periods in excess of 12 months. The trial court then concluded, after considering
the applicable factors, that termination of parental rights is in the best interest of the
children under both R.C. 2151.414(D)(1) and 2151.414(D)(2). Having concluded the two-
part test for PCC was met, the trial court granted FCCS’s March 16, 2022 motion for
permanent custody of K.M., and March 21, 2022 motion for permanent custody of T.M.
II. Assignments of Error
{¶ 29} Appellant appeals and raises the following assignment of error for our review:
The trial court committed reversible error by terminating the
appellant-mother’s parental rights when the decision was
against the manifest weight of the evidence.
III. Analysis
{¶ 30} “[P]arents’ interest in the care, custody, and control of their children ‘is
perhaps the oldest of the fundamental liberty interests’ ” recognized in American law. In re
B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65
(2000). Accord In re Murray, 52 Ohio St.3d 155, 157 (1990). See also Stanley v. Illinois,
405 U.S. 645, 651 (1972).
{¶ 31} However, a parent’s fundamental right to raise their child is “ ‘not absolute.’ ”
In re Cunningham, 59 Ohio St.2d 100, 106 (1979), quoting In re R.J.C., 300 So.2d 54, 58
Nos. 23AP-168 & 23AP-169 10
(Fla.App.1974). A parent’s natural rights are “always subject to the ultimate welfare of the
child.” Id. Thus, in certain circumstances, the state may terminate the parental rights of
natural parents when it is in the best interest of the child. In re D.A., 113 Ohio St.3d 88,
2007-Ohio-1105, ¶ 11. B.C. at ¶ 20 (“Ultimately, parental interests are subordinate to the
child’s interest when determining the appropriate resolution of a petition to terminate
parental rights.”). “Permanent termination of parental rights has been described as ‘the
family law equivalent of the death penalty in a criminal case.’ ” In re Hayes, 79 Ohio St.3d
46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist.1991). “Therefore,
parents ‘must be afforded every procedural and substantive protection the law allows.’ ” Id.
at 48, quoting Smith at 16.
{¶ 32} In Ohio, the termination of parental rights is governed by R.C. 2151.414.
Under R.C. 2151.414(B)(1), a juvenile court may grant permanent custody of a child to a
children’s services agency if the court determines by clear and convincing evidence that: (1)
one of five factors enumerated in R.C. 2151.414(B)(1)(a) through (e) applies; and (2) it is in
the best interest of the child to do so. In re Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, ¶ 7.
“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 (1954), paragraph three of the syllabus.
{¶ 33} “[T]he proper appellate standards of review to apply in cases involving a
juvenile court’s decision under R.C. 2151.414 to award permanent custody of a child and to
terminate parental rights are the sufficiency-of-the-evidence and/or manifest-weight-of-
the-evidence standards, as appropriate depending on the nature of the arguments that are
presented by the parties.” Z.C. at ¶ 18 (rejecting use of the abuse of discretion standard in
reviewing permanent custody determinations under R.C. 2151.414 and clarifying that
separate standards for sufficiency and manifest weight of the evidence apply instead).
Furthermore, “although the phrase ‘some competent, credible evidence’ can be helpful in
describing the reviewing court’s deferential role in the manifest-weight analysis, it should
not be used as a substitute for the separate sufficiency and manifest-weight analyses
appropriate for permanent-custody determinations” as set forth in State v. Thompkins, 78
Nos. 23AP-168 & 23AP-169 11
Ohio St.3d 380 (1997) and Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179. Z.C.
at ¶ 15.
{¶ 34} The sufficiency of the evidence standard tests the adequacy of the evidence:
a court of appeals should affirm a trial court when the evidence, if believed, is legally
sufficient to support the verdict as a matter of law. Z.C. at ¶ 13; Thompkins at 386. The
manifest weight of the evidence standard concerns the effect of the evidence in inducing
belief. Z.C. at ¶ 13; Thompkins at 387. “When reviewing for manifest weight, the appellate
court must weigh the evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine 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 trial ordered.” Z.C. at ¶ 14, citing Eastley at ¶ 20. “ ‘In weighing
the evidence, the court of appeals must always be mindful of the presumption in favor of
the finder of fact.’ ” Z.C. at ¶ 14, quoting Eastley at ¶ 21.
{¶ 35} In this case, appellant does not dispute that both K.M. and T.M. have been in
the temporary custody of FCCS for 12 or more months of a consecutive 22-month period or
that either R.C. 2151.414(B)(1)(a) or 2151.414(B)(1)(d) is satisfied. As a result, the first
requirement for PCC—satisfying one of five factors enumerated in R.C. 2151.414(B)(1)(a)
through (e)—is met, so the dispositive issue becomes whether the decision to grant
permanent custody to FCCS is in the best interest of the children under R.C. 2151.414(D).
{¶ 36} The trial court determined granting permanent custody to FCCS is in the best
interest of the children under both R.C. 2151.414(D)(2), which conclusively establishes
permanent custody is in the best interest of the child if four factors are met and requires a
court to commit the child to the permanent custody of the agency, and R.C. 2151.414(D)(1),
which permits a court to commit the child to the permanent custody of the agency after the
court considers relevant factors.
{¶ 37} Appellant contends the trial court’s analysis of these best interest factors
resulted in a PCC ruling that is against the manifest weight of the evidence. However, as
explained below, while we acknowledge appellant complied with parts of her case plan, the
trial court’s assessment that FCCS should be granted permanent custody of the children
pursuant to R.C. 2151.414 is nevertheless supported by the manifest weight of the evidence
in this case.
Nos. 23AP-168 & 23AP-169 12
A. Best interest of the child determination under R.C. 2151.414(D)(2)
{¶ 38} Pursuant to R.C. 2151.414(D)(2), if all four listed factors apply, permanent
custody is conclusively established to be in the best interest of the child, and “the court shall
commit the child to the permanent custody” of the agency. Appellant does not contest the
trial court’s determination that R.C. 2151.414(D)(2)(b) through (d) are met. Instead,
appellant appears to challenge the trial court’s finding as to R.C. 2151.414(D)(2)(a). That
subsection requires the trial court to determine “by clear and convincing evidence that one
or more of the factors in [R.C. 2151.414(E)] exist and the child cannot be placed with one of
the child’s parents within a reasonable time or should not be placed with either parent.”
R.C. 2151.414(D)(2)(a). At various points in its decision, the trial court found R.C.
2151.414(E)(1), (4), and (10) were met. (Feb. 22, 2023 Jgmt. Entry at 9, 11.)
{¶ 39} Initially, we note the trial court’s analysis of whether appellant abandoned
the children under R.C. 2151.414(E)(10) did not consider the definition of an abandoned
child under R.C. 2151.011(C), which states: “For the purposes of this chapter, a child shall
be presumed abandoned when the parents of the child have failed to visit or maintain
contact with the child for more than ninety days, regardless of whether the parents resume
contact with the child after that period of ninety days.” See In re A.P., 10th Dist. No. 23AP-
253, 2024-Ohio-741, ¶ 51-54 (noting R.C. 2151.011(C) does not contain a requirement of
any particular intent to abandon the child on behalf of the parent). Here, while K.M.’s foster
mother testified appellant did not visit K.M. from August to December 2018, there is no
testimony to demonstrate appellant failed to maintain contact of any sort with K.M.
Furthermore, no testimony expressly states appellant also failed to visit T.M. during this
period or that appellant failed to maintain contact with T.M. As a result, we disagree with
the trial court that R.C. 2151.414(E)(10) is met as to either child.
{¶ 40} Regardless, clear and convincing evidence supports the trial court’s findings
as to R.C. 2151.414(E)(1) and (4). First, R.C. 2151.414(E)(1) states:
[f]ollowing 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
Nos. 23AP-168 & 23AP-169 13
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.
The conditions that led to K.M.’s removal from appellant’s home included concerns that
K.M. was exposed to domestic violence, appellant’s potential substance abuse and lack of
consistent drug screenings, appellant’s untreated mental health issues, appellant’s lack of
employment, her unstable housing, and the parents’ failure to address K.M.’s
developmental delays. The conditions that led to T.M.’s removal from appellant’s custody
included T.M.’s health issues having been born with drugs in his system, the parents’
unaddressed and serious chemical dependency and mental health issues, and the parents’
lack of stable housing and employment.
{¶ 41} The testimony provided by the FCCS caseworker shows that, after K.M. and
T.M. were placed in the agency’s temporary custody, FCCS engaged in reasonable case
planning in an effort to reunite appellant with the children and made efforts to assist her in
accomplishing this goal, such as providing appellant with referrals for drug and alcohol
services, counseling services, and parenting classes, providing gas cards and monthly bus
passes, and holding regular progress meetings. Furthermore, while the record shows
appellant completed parts of the case plan, testimony provided by the FCCS caseworker,
the GAL, and the foster parents demonstrate that appellant had not completed drug
screenings in more than a year prior to trial, appellant did not provide proof of employment,
appellant’s apartment, although suitable for the children, was subject to eviction
proceedings at the time of trial, and appellant had not attended the children’s medical
appointments or otherwise made an effort to learn how to care for her children with special
needs. We find R.C. 2151.414(E)(1) is met.
{¶ 42} The trial court’s finding as to R.C. 2151.414(E)(4) is likewise supported by
clear and convincing evidence. R.C. 2151.414(E)(4) states, “The parent has demonstrated
a lack of commitment toward the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing an unwillingness to provide
an adequate permanent home for the child.” Through testimony provided by the FCCS
Nos. 23AP-168 & 23AP-169 14
caseworker, the GAL, and the foster parents, FCCS established that appellant’s visitations
with the children were inconsistent and appellant showed an unwillingness to provide an
adequate permanent home for the children by failing to remedy her unstable housing
situation, not attending the children’s medical appointments, and not providing proof of
her progress with drug dependency by completing drug screens or proof of employment
when requested.
{¶ 43} Therefore, because all four factors listed in R.C. 2151.414(D)(2) apply for both
K.M. and T.M., permanent custody is in the best interest of the children, requiring
permanent custody to be granted to FCCS.
B. Best interest of the child determination under R.C. 2151.414(D)(1)
{¶ 44} While the best interest of the child finding under R.C. 2151.414(D)(2) is
sufficient to support granting the PCC motion alone, we also find the trial court’s best
interest determination under R.C. 2151.414(D)(1) is supported by clear and convincing
evidence as to both children. R.C. 2151.414(D)(1) provides that 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 or private child placing agencies for
twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one
or more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two-month period and, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in
another state;
Nos. 23AP-168 & 23AP-169 15
(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.
In this case, the trial court made findings under each R.C. 2151.414(D)(1) factor, as follows.
{¶ 45} Under R.C. 2151.414(D)(1)(a), the trial court determined that although both
children seemed comfortable with appellant, she failed to achieve a bond with either child
or demonstrate a commitment to achieving reunification by her failure to consistently visit
the children, failure to attend their medical appointments, and failure to attend trial.
Conversely, the trial court found the children are very bonded to their foster parents, who
the children both look to for comfort. The court noted that K.M. additionally has a bond
with the foster parents’ eight-year-old son and parents, while T.M. has a good relationship
with the foster parents’ older daughter who no longer lives in the home. The trial court
additionally found the two foster families have an excellent relationship with each other
and meet regularly to socialize the siblings, and both foster parents testified they will adopt
K.M. and T.M if they are given the chance to do so.
{¶ 46} Under R.C. 2151.414(D)(1)(b), the trial court determined K.M. wished to live
with his foster family rather than his parents, although K.M. was not asked whether he
would regret never seeing appellant again. The trial court determined T.M. was unable to
express his wishes as to who he wanted to live with.
{¶ 47} Under R.C. 2151.414(D)(1)(c), the trial court found that upon K.M.’s removal
on August 22, 2018, he had been placed with his paternal grandparents for a short period
of time, and then, from February 8, 2019 until the date of the trial, had lived with his current
foster parents. The trial court determined T.M. had lived with his current foster parents
ever since he was discharged from the hospital as an infant (September 2019).
{¶ 48} Under R.C. 2151.414(D)(1)(d), the trial court discussed the special health and
educational needs of each child, which amplified the children’s need for a legally secure
permanent placement, and appellant’s failure to attend their medical appointments despite
notice of them. The trial court found the foster parents proved to be prepared to meet the
Nos. 23AP-168 & 23AP-169 16
significant special needs of the children, while appellant was not prepared to meet those
special needs.
{¶ 49} Under R.C. 2151.414(D)(1)(e), the trial court determined appellant
abandoned both children under R.C. 2151.414(E)(10) by failing to visit the children, attend
their medical and therapy appointments, and attend trial.
{¶ 50} As additional relevant factors, the trial court cited the recommendations of
the GAL and the FCCS caseworker that the motions for permanent custody be granted as
to both children and appellant’s failure to complete some essential elements of the case
plan.
{¶ 51} In challenging the trial court’s analysis, appellant argues that granting PCC is
the “last resort” and should not have occurred in this case because appellant “did complete
several major components of her case plan.” (Emphasis omitted.) (Appellant’s Brief at 10,
19.) Appellant contends she completed the domestic violence assessments with no
recommended follow up, the mental health assessment, parenting classes, signed releases
of information, was gainfully employed, and had an apartment that FCCS deemed
appropriate for the two children. Appellant believes her completion of these case plan
requirements demonstrates her desire to reunite with her children and undercuts the trial
court’s finding that she abandoned her children and did not complete the essential elements
of her case plan.
{¶ 52} Initially, as noted above, we agree with appellant as to the abandonment
finding. We do not find clear and convincing evidence supported the trial court’s
abandonment finding under R.C. 2151.414(D)(1)(e) and 2151.414(E)(10) because the trial
court’s analysis did not consider the temporal requirement under R.C. 2151.011(C), which
is not met on the record of this case.
{¶ 53} We additionally recognize appellant successfully completed several
significant parts of her case plan. Appellant signed releases of information for FCCS to
monitor her compliance with her case plans, completed parenting classes, completed the
domestic violence assessment, and continues to participate in the recommended mental
health counseling. Nevertheless, for the following reasons, appellant’s accomplishments
with her case plan do not outweigh the totality of the factors demonstrating FCCS should
be granted permanent custody of the children in this case.
Nos. 23AP-168 & 23AP-169 17
{¶ 54} Evidence of a parent’s completion of case plan objectives is relevant, but not
dispositive, to the best-interest determination under R.C. 2151.414(D). In re M.W., 10th
Dist. No. 19AP-769, 2020-Ohio-5199, ¶ 57. Thus, a parent’s successful completion of a case
plan does not preclude a trial court from determining permanent custody of a child with
the agency is warranted, particularly where the parent has not remedied the conditions that
caused the child to be removed from the home. In re B.R., 10th Dist. No. 18AP-903, 2019-
Ohio-2178, ¶ 47, quoting In re E.B., 12th Dist. No. CA2009-10-139, 2010-Ohio-1122, ¶ 30.
See also M.W. at ¶ 57 (determining the trial court’s best interest analysis was not against
the manifest weight of the evidence despite the mother’s substantial completion of her case
plan at the time of trial).
{¶ 55} A recent example from this court illustrates this point. In In re I.J.H., 10th
Dist. No. 22AP-332, 2023-Ohio-941, ¶ 39-40, the mother-appellant maintained that PCC
was not warranted because she had substantially complied with the case plan objectives.
She completed a domestic violence assessment and parenting classes and was consistent
with visitations. This court determined that, despite her progress, the testimony presented
revealed appellant had fallen short of significant objectives in the case plan, including
maintaining stable employment and obtaining suitable housing. The testimony further
showed the appellant had “demonstrated a lack of involvement in the children’s medical
appointments and counseling sessions, which has manifested in a lack of understanding of
the nature and extent of the children’s serious medical and psychological conditions, and a
lack of awareness of their developmental delays.” Id. at ¶ 39. We further emphasized that
a parent’s compliance with the case plan must be viewed within the broader context of the
statutory factors set out in R.C. 2151.414(D)(1)(a) through (e). Id. at ¶ 40. Viewed in that
context, we determined the appellant’s completion of certain objectives of the case plan and
removal of some impediments to reunification were not enough to demonstrate the PCC
motion should have been denied since the evidence showed the appellant “failed to address
serious concerns for the health and safety of the children.” Id. at ¶ 40.
{¶ 56} The case at hand is analogous to In re I.J.H. Despite appellant’s successful
completion of some case plan objectives, testimony provided by the FCCS caseworker, the
GAL, and the foster parents demonstrate that appellant failed to address serious concerns
with the health and safety of the children. Appellant had not completed drug screenings
Nos. 23AP-168 & 23AP-169 18
since over a year prior to trial, and appellant had not attended the children’s medical
appointments or otherwise made an effort to learn how to care for children with special
needs. Appellant admits her visitations with the children were inconsistent. Furthermore,
while appellant asserts she has a legal source of income and safe and stable housing, she
did not provide proof of employment when requested to do so, appellant’s apartment was
subject to eviction proceedings at the time of trial, and the testimony showed she had a
history of unstable housing. Moreover, evidence presented concerning the significant bond
between the children and their foster families and lack of bond with appellant, their
custodial histories, their heightened need for a legally secure placement due to their special
needs that appellant failed to show she can manage, K.M.’s expressed desire to remain with
his foster family, and the recommendation of the GAL all weigh in favor of the trial court’s
best interest determination under R.C. 2151.414(D)(1). See R.C. 2151.414(D)(1)(a) through
(d). Considering all of the R.C. 2151.414(D)(1) factors, we agree with the trial court’s
determination that granting permanent custody of the children to FCCS is in K.M. and
T.M.’s best interest and is not against the weight of the evidence.
{¶ 57} Having determined granting permanent custody of K.M. and T.M. is in the
best interest of the children under R.C. 2151.414(D)(1) and 2151.414(D)(2), the second
requirement for granting permanent custody of K.M. and T.M. to FCCS is met. R.C.
2151.414(B)(1). Overall, upon a thorough consideration of the record, we find clear and
convincing evidence exists to support the trial court’s determination that an award of
permanent custody to FCCS is in K.M. and T.M’s best interest and the decision was not
against the manifest weight of the evidence. Accordingly, appellant’s assignment of error
to the contrary lacks merit and is overruled.
IV. Conclusion
{¶ 58} Having overruled appellant’s sole assignment of error, we affirm the
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
LUPER SCHUSTER and BOGGS, JJ., concur.