In re S.M.I.

[Cite as In re S.M.I., 2019-Ohio-2342.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
S.M.I., : No. 18AP-376
(C.P.C. No. 16JU-0730)
(H.H., :
(REGULAR CALENDAR)
Appellant). :
:
D E C I S I O N
Rendered on June 13, 2019
On brief: Lawrence L. Levinson, for appellant.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
NELSON, J.
{¶ 1} Judge Rapp in his detailed opinion for the domestic court laid out many of
the challenges confronting four-year-old S.M.I. and his caregivers in this permanent
custody case:
[S.M.I.] has a congenital heart defect. He has had a leg
amputation below the knee and requires a wheel chair. There
is a small chance he may eventually be fitted with a prosthesis
and successfully walk. He has had a brain hemorrhage and has
cerebral palsy. He cannot eat on his own. All nourishment
requires feeding tubes (G/J Tubes). He aspirates and requires
suction every 5 minutes to every hour without which he would
suffocate and/or contract pneumonia. He is to not travel if the
temperature is below 40 degrees. Routine medical
appointments often need to be rescheduled. He requires a
ventilator and tracheotomy care and monitoring by a pulse
oximeter 24/7. In addition to frequent medical appointments,
No. 18AP-376 2
he receives physical and speech therapy weekly. He is very
developmentally delayed. He makes sounds but cannot speak
or walk. He is * * * learning to bear weight and sit in a high
chair. He has approximately nine prescriptions that must be
administered six times throughout each day.
May 2, 2018 Jgmt. Entry Granting Permanent Custody at 8-9.
{¶ 2} Born "24 weeks premature * * * , [S.M.I.] spent his first seventeen months in
hospitalization after which he was placed in a foster home licensed to care for medically
fragile children. [He] has never lived with either [biological] parent." Id. at 6. He has lived
in the home and care of his foster parents since June 1, 2016. Id. at 7. S.M.I. "is bonded
with his foster parents and the other members of his foster family. His bedroom is in the
center of the first floor of the house and he is also the center of attention. He is very
comfortable in his current foster home. [Through extraordinarily commendable efforts,]
[t]he foster parents are able to meet [his] needs. The foster parents are not prospective
adoptive parents." Id. at 12 (emphasis omitted).
{¶ 3} The domestic court opinion describes the circumstances under which the
Franklin County Children Services agency ("the County") was granted temporary custody
of S.M.I. as a dependent child on January 26, 2016; how after a no contest plea pursuant to
Juv.R. 29(C), the trial court approved reunification "Case Plan Number 2" as filed April 14,
2016; that on June 1, 2016, with no appeal having been taken from the
adjudication/disposition entry, the foster parents took S.M.I. into their home; and that the
court granted a six-month extension of the County's custody over S.M.I. on January 24,
2017, while also adopting reunification Case Plan 2.02. Id. at 6-7. On February 1, 2017, the
trial court determined that the County had "made reasonable efforts to prevent the
continued removal of the child from the home and to implement a permanency plan."
Feb. 1, 2017 Findings of Fact and Conclusions of Law.
{¶ 4} The County filed its motion for permanent custody on June 22, 2017. The
trial court conducted a termination hearing on March 21, 2018 and heard testimony from
S.M.I.'s biological mother and father, his foster mother, his guardian ad litem, and the
County case worker.
{¶ 5} The domestic court granted permanent custody of S.M.I. to the County.
Although the Judgment Entry from which S.M.I.'s mother now appeals appropriately
No. 18AP-376 3
assesses the relevant legal standards point by point, it is fair to characterize the decision as
informed generally on the one hand by the fact that S.M.I. needs—that is, that he absolutely
depends upon—"24/7 care" requiring "specialized knowledge, skills," undeviating
vigilance, and on the other by a demonstrated inability or unwillingness on the part of his
biological parents to acquire that knowledge and skill and follow through on his doubtlessly
daunting needs. Compare, e.g., id. at 8-9 (critical need for unstinting, never neglected care)
with id. at 12 (reciting "Parents' failure to complete the reunification case plan, their lack of
[achieving] training to meet [S.M.I.'s] needs, and Parents' lack of establishing a bond with
[him]").
{¶ 6} The domestic court emphasized that "[t]here was absolutely no evidence to
suggest that Mother and Father had not appropriately cared for [S.M.I.'s] four siblings." Id.
at 8. But as a "medically fragile" child, S.M.I. presents special and essential needs that the
court found his biological parents (who do not reside together) do not and are not likely to
meet. See, e.g., id. at 9, 11 ("Parents failed to meet [S.M.I.'s] basic needs, an essential
component of the case plan"; "Parents failed to present credible and reasonable
explanations of their failure to visit or contact" him; he "has significant special needs that
Parents are unable or unwilling to provide"). By contrast, the court found, S.M.I.'s foster
parents "received training and are licensed to provide foster care for medically fragile
children, [and] the foster mother [a retired nurse] received additional training over a period
of two weeks before [S.M.I.] was released from the hospital to the foster home." Id. at 8.
{¶ 7} In asking us to reverse the grant of permanent custody and to instruct that
the County be told to pursue efforts now "to reunify S.M.I. with mother," Appellant's Brief
at 21, S.M.I.'s biological mother advances two assignments of error. She argues first that
the "trial court's determination that the appellant's parental rights should be terminated is
not supported by clear and convincing evidence," and second that the "trial court's
determination that the agency made reasonable efforts to unify this family is not supported
by clear and convincing evidence." Appellant's Brief at 5.
{¶ 8} We begin our review by acknowledging the enormous gravity of the parent-
child issues implicated here and in any permanent custody matter. The Supreme Court of
Ohio has underscored that the right to raise one's children "is a fundamental right." In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66
No. 18AP-376 4
(2000) (citation omitted); see also, e.g., In re Hayes, 79 Ohio St.3d 46, 48 (1997)
(" 'essential' and 'basic' civil right"), quoting In re Murray, 52 Ohio St.3d 155, 157 (1990).
"Because an award of permanent custody is the most drastic disposition available under the
law, it is an alternative of last resort and is only justified when it is necessary for the welfare
of the children." In re Swisher, 10th Dist. No. 02AP-1408, 2003-Ohio-5446, ¶ 26, citing In
re Cunningham, 59 Ohio St.2d 100, 105 (1979).
{¶ 9} Ohio statute specifies procedures to safeguard the vital interests at stake. "A
decision to award permanent custody requires the trial court to take a two-step approach."
In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 18. First (as a matter of practice,
we have said, albeit not by statutory sequencing), the court must determine by clear and
convincing evidence whether any one of five "threshold findings" applies. Id.; see R.C.
2151.414(B)(1)(a) through (e). Here, there is no dispute but that the County "satisfied" this
requirement "by demonstrating that S.M.I. was in the [temporary] custody of the agency
for 12 months out of a consecutive twenty-two-month period." Appellant's Brief at 15; see
R.C. 2151.414(B)(1)(d). So the court's inquiry then turns to whether "it is in the best interest
of the child to grant permanent custody of the child to the agency that filed the motion."
R.C. 2151.414(B)(1).
{¶ 10} "The burden of proof falls upon [the County] to prove by clear and convincing
evidence that an award of permanent custody is in the child's best interest." In re KL at
¶ 20 (reciting statute). Clear and convincing evidence " 'is that degree of proof that will
produce in the mind of the trier of fact a firm belief or conviction as to the facts to be
established' "; it requires " 'more than a mere preponderance of the evidence but does not
require proof beyond a reasonable doubt.' " In re K.D., 10th Dist. No. 18AP-746, 2019-
Ohio-1077, ¶ 31 (citation omitted).
{¶ 11} In making the critical "best interest" assessment, the court is required to
"consider all relevant factors, including, but not limited to," five specified considerations.
R.C. 2151.414(D)(1)(a) through (e). Here, after considering the statutorily identified
factors, the trial court determined it "abundantly clear" that a grant of permanent custody
to the County is in S.M.I.'s best interests. Jgmt. Entry Granting Permanent Custody at 12,
13 (at one page apparently making unfortunate clerical error regarding S.M.I.'s name).
No. 18AP-376 5
{¶ 12} We "review the evidence to determine whether competent, credible evidence
supports the trial court's best interest finding [as made under the clear and convincing
evidence standard]." In re J.S., 10th Dist. No. 05AP-615, 2006-Ohio-702, ¶ 23 (citation
omitted). That is because a "trial court's determination in a permanent custody case will
not be reversed on appeal unless it is against the manifest weight of the evidence.
'Judgments supported by some competent, credible evidence going to all essential elements
of the case will not be reversed by a reviewing court as being against the manifest weight of
the evidence.' " Id. at ¶ 21, citing In re Andy-Jones, 10th Dist. No. 03AP-1167, 2004-Ohio-
3312 at ¶ 28; Young v. Univ. of Akron, 10th Dist. No. 04AP-318, 2004-Ohio-6720, ¶ 25,
citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978).
{¶ 13} The trial court examined each of the statutorily-required "best interest"
factors. Although Appellant's Brief does not address these factors point-by-point, we will
attempt to associate the arguments that the biological mother does advance with each factor
where arguably pertinent.
{¶ 14} First, R.C. 2151.414(D)(1)(a) necessitates an examination of S.M.I.'s
"interaction and interrelationship" with his "parents, siblings, relatives, foster caregivers
and out-of-home providers," and with anyone else "who may significantly affect" him.
S.M.I. has been hospitalized or in foster care for his entire life: he "has never lived with
either Parent." Jgmt. Entry Granting Permanent Custody at 6. His mother seems to argue
that she was not responsible for the lack of a sustained relationship with her son: She
submits that "[n]o training was set up for Mother to learn for the care of S.M.I."; that
transportation was arranged for her only on occasion; that "Agency placement to foster
parents specially equipped to handle S.M.I. at the outset made it nearly impossible for her
son to be placed with Mother on a best interest basis"; that "she attended appointments but
could not remember the dates, but there were a number of them"; and that "it is possible
S.M.I. could benefit from placement with his siblings." Appellant's Brief at 17-18.
{¶ 15} The record supports the trial court's observations that:
[T]he reunification plan allowed for at least weekly visitation
by Parents. The Guardian ad Litem (appointed on January 26,
2016) had a responsibility to attempt to observe visitations
between the Child and Parents. He gave his business card to
Mother. He made calls to Mother and left messages. She never
returned his calls. Father never visited the Child after June 5,
No. 18AP-376 6
2016. Mother never visited the Child after June 21, 2017. There
was no attempt by parents to establish a bond with [S.M.I.].
***
The child is bonded with his foster parents and the other
members of his foster family. * * * He is very comfortable in
his current home. * * * *
Jgmt. Entry Granting Permanent Custody at 11-12 (emphasis in original); see, e.g., Tr. at
29 (biological mother attended very few medical appointments), 63 and 258 (didn't call
G.A.L), 197 (biological mother wouldn't keep appointments to meet with County
caseworker), 224 (same), 245-46 (biological mother hasn't attended most medical
appointments), 258 (G.A.L. "absolutely" comfortable with foster placement and bonding
there).
{¶ 16} The domestic court also was entitled to find, as it did, that Mother's testimony
that she was never told she needed training or given the chance to learn "was not credible.
Mother admitted that she never asked the case worker for help to get training." Jgmt. Entry
Granting Permanent Custody at 8; see, e.g., Tr. at 51 (never inquired re medications), 60-
62 (never reached out to caseworker re training help).
{¶ 17} Evidence also supports the domestic court's conclusions that: "Since [S.M.I.'s
release from the hospital on or about June 5, 2016, Mother attended only three of [his]
many medical appointments. Father attended no appointments. Mother did not know
[S.M.I.'s] medical diagnosis although she knew he had a leg amputation and needs a feeding
tube. Mother mistakenly believes [he] can eat but 'not big stuff.' Mother did not know the
names of any of [his] doctors. She did not know if [he] needed prescription medications.
Had Parents consistently attended [his] many medical appointments, they would have
acquired essential knowledge and the medical providers would have determined what
training was necessary for Parents to care for their medically fragile Child." Jgmt. Entry
Granting Permanent Custody at 9; see, e.g., Tr. at 29 (biological mother attended only very
limited number of medical appointments), 19-20 (not aware of many diagnoses and needs;
unfamiliar with who S.M.I.'s doctors are), 35 (same with medications), 20 (not aware that
S.M.I. cannot ingest anything through mouth).
No. 18AP-376 7
{¶ 18} The biological parents did not use taxi services when arranged for them, and
the agency caseworker was unable to schedule monthly meetings with the parents to
discuss medical needs and visitation arrangements; she was able to meet in person with
S.M.I.'s mother only on very limited occasion. Jgmt. Entry Granting Permanent Custody
at 10; see, e.g., Tr. at 205, 225 (did not take advantage of transportation offers), 198-99
(biological mother met with caseworker only three times over life of case; biological father
never met with caseworker).
{¶ 19} As further recited by the domestic court, the parent's visitations with S.M.I.
apparently were hampered by failure (on the part of the father) and delay (by the mother)
in getting requested vaccinations to protect S.M.I. Jgmt. Entry Granting Permanent
Custody at 10; see Tr. at 212-13. Mother does not dispute the court's finding that after
S.M.I.'s first release from the hospital, "Mother's only visitation or contact occurred at three
medical appointments: August 15, 2016; April 19, 2017; and June 21, 2017. Her last visit
with [him] was after his leg amputation." Jgmt. Entry Granting Permanent Custody at 11.
{¶ 20} Evidence in the record supports a view that the biological parents were
afforded opportunity to get to know S.M.I. and to learn about what is required for his care,
but failed to do so. See, e.g., Tr. at 261-63 (testimony of G.A.L.), 199 (caseworker
testimony). And competent, credible evidence supports a view that the "interaction and
interrelationship" factor weighs in favor of the award of permanent custody to the County.
See, e.g., Tr. at 258-61 (contrast between attention provided by S.M.I.'s foster parents and
by his biological parents).
{¶ 21} The same is true for the second factor, the "wishes of the child, as expressed
directly by the child or through the child's guardian ad litem." See R.C. 2151.414(D)(1)(b).
S.M.I.'s guardian ad litem recommends the grant of permanent custody to the County. Tr.
at 263; Jgmt. Entry Granting Permanent Custody at 12 ("Among other reasons for the
recommendation: Parents' failure to complete the reunification case plan, their lack of
training to meet [S.M.I.'s needs], and Parents' lack of establishing a bond with [him]").
{¶ 22} The third factor requires consideration of "[t]he custodial history of the
child." R.C. 2151.414(D)(1)(c). The domestic court was correct in noting that S.M.I. "spent
his first seventeen months in hospitalization after which he was placed in a foster home
licensed to care for medically fragile children," Jgmt. Entry Granting Permanent Custody
No. 18AP-376 8
at 6, and that he "has been in the temporary custody" of the County from January 26, 2016
onward, id. at 12. Again, this factor weighs in favor of the trial court's determination.
{¶ 23} The fourth factor in determining "best interest" looks to 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." R.C. 2151.414(D)(1)(d). Mother says
that she "demonstrated she has a safe and stable home and a secure source of income"; that
she "was aware of the care that S.M.I. needed"; that she "was not lacking in parenting
skills"; that "failure to complete the parenting and domestic violence classes should not be
considered against [her] when reviewing case plan compliance"; and that her testimony
further indicates that she is "prepared to help with the care for S.M.I." Appellant's Brief at
17-18. The domestic court, by contrast, found that S.M.I. "cannot be placed with a Parent
now or within a reasonable time as the Parents are not able or willing to meet the needs of
the Child. * * * The Child needs a permanent placement now. It is abundantly clear that a
legally secure permanent placement cannot be achieved for [him] without an order of
permanent custody to the Agency." Jgmt. Entry Granting Permanent Custody at 12.
{¶ 24} Again, there is competent, credible evidence to support the domestic court's
position, and this factor, too, weighs for the grant of permanent custody to the County.
Evidence reflects that neither biological parent has taken the steps needed fully to
familiarize herself or himself with the ins and outs of care needed to safeguard S.M.I.'s life,
and that neither has demonstrated the sort of sustained commitment to task and detail that
is so critical in this special case. See, e.g., Tr. at 28, 58, 63, 160, 197-99, 245-46, 260-61.
The record of unmade or missed appointments engenders no confidence that Mother (or
Father) could maintain attention to S.M.I.'s medical needs as required minute-by-minute
when the outside nurses are off. Compare, e.g., Tr. at 245-46 (failure to acquire medical
information and attend medical appointments) with Tr. at 112 (constant importance of
"airway management"), 126 (avoiding any neglect is of "life-and-death" significance).
{¶ 25} Rather, as the domestic court underscored, the record is replete with
evidence showing their failure to satisfy important terms of the reunification/care plans.
Mistaken beliefs as to what S.M.I. can consume, for example, compare Tr. at 20 (biological
mother believes S.M.I. can take small portions of food through mouth) with id. at 80-81
(can ingest only through tube) clearly could have devastating consequences. The domestic
No. 18AP-376 9
court also was justified in finding that "Parents never identified an alternative-care provider
who indicated a willingness to be trained to meet [S.M.I.'s] needs"; that "[n]either parent
ever completed a parenting program"; that [n]either parent completed a domestic violence
assessment"; and that "Parents failed to present credible and reasonable explanations for
their failure to visit or contact [S.M.I.]," a failure that the domestic court properly found to
deprive S.M.I. of an "essential basic need." Jgmt. Entry Granting Permanent Custody at
9-10 (emphasis in original); see, e.g., Tr. at 48-49 (biological mother admits that her
mother and father, proposed as potential relief care-givers, have not taken training to care
for S.M.I.), 209 (County caseworker testifies that apart from housing/employment
provisions, biological mother has not completed any aspect of care plan).
{¶ 26} Again in contrast, "the foster father and foster mother received training and
are licensed to provide foster care for medically fragile children, [and] the foster mother
[took the time and effort to receive[ ] additional training over a period of two weeks before
S.M.I. was released from the hospital to the foster home." Jgmt. Entry Granting Permanent
Custody at 8; see, e.g., Tr. at 74-80.
{¶ 27} As to the fifth statutorily specified "best interest" factor, see R.C.
2154.414(D)(1)(e), although the domestic court found that "[n]o evidence was offered as to
the * * * factors listed in divisions (E)(7) to (11) of R.C. 2154.414," Jgmt. Entry Granting
Permanent Custody at 12, the court did conclude relative to R.C. 2151.414(B)(1)(b) that its
findings "establish[ed] a presumption of abandonment by Parents and the Parents have
failed to offer a reasonable explanation for their failure to visit [S.M.I.]" Id. at 13.
{¶ 28} Our review of the entire record persuades us that the domestic court did
indeed have competent and credible evidence to support its conclusion that permanent
commitment to the County is in S.M.I.'s best interest and that the parental rights of the
biological parents should be terminated consistent with that grant. We therefore overrule
Mother's first assignment of error.
{¶ 29} Mother's second assignment of error is that the evidence does not show that
the County made reasonable efforts at reunification. Appellant's Brief at 18. Her view is
premised on the belief that "[t]he Agency's lack of effort in this case made it nearly
impossible for Mother to complete her case plan." Id. at 20. But as the discussion above
reflects, it is not the County here that has demonstrated a "lack of effort."
No. 18AP-376 10
{¶ 30} Except in a few "narrowly defined" circumstances, the County must "make
reasonable efforts to reunify the family during the child-custody proceedings prior to the
termination of parental rights. If the agency has not established that reasonable efforts
have been made prior to the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time." In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 43.
{¶ 31} Here, the domestic court magistrate determined in its entry of February 1,
2017 that "Franklin County Children Services made reasonable efforts to prevent the
continued removal of the child from the home and to implement a permanency plan."
Feb. 1, 2017 Findings of Fact and Conclusions of Law.
{¶ 32} In its final order granting permanent custody to the County, the domestic
court further found that "[r]eunification efforts have been unsuccessful"; that by the terms
of R.C. 2151.414(E), "the Parents have failed continuously and repeatedly to substantially
remedy the conditions causing the Child to be placed" outside the home, "demonstrated a
lack of commitment to [S.M.I.] by failing to complete the case plan, failing to demonstrate
that they can care for [him], and failing to visit," and "have abandoned the Child"; and that
the County "has made reasonable efforts to finalize the permanency plan in effect for the
Child" in keeping with the provisions of R.C. 2151.419 (which does not apply here by its
precise terms, see In re C.F. at ¶ 41, 43). Jgmt. Entry Granting Permanent Custody at 13,
14.
{¶ 33} The domestic court's conclusions here are supported by the evidence for
many of the same reasons that the grant of permanent custody to the County is in S.M.I.'s
best interests. The case plan established a reasonable roadmap toward potential
reunification, but the biological parents proved unable or unwilling to comply with point
after point. Id. at 8-11 (cataloging significant and numerous deficiencies); see, e.g., Tr. at
261 (G.A.L.: "the parents have been asked and given lots of opportunity in the last two years
or so to get the training, to meet with doctors, to do certain things, to learn what they would
need to do; in addition to * * * finding out about the machines, the equipment, * * * and the
medication[,] and none of that has been done"), 209 (caseworker details many aspects of
case plan that have gone unmet, with biological mother and father not getting required
counseling or training for necessary medical care). For all the reasons expressed by the
No. 18AP-376 11
trial court, the multiple and sustained failures at plan compliance signal that reunification
would pose enormous danger to this medically fragile child.
{¶ 34} Review of the entire record shows that the domestic court had competent and
credible evidence to support its various conclusions by clear and convincing evidence that
the County made reasonable efforts at reunification and that granting the County's motion
for permanent custody was in S.M.I.'s best interest. We overrule the biological mother's
second assignment of error.
CONCLUSION
{¶ 35} The domestic court's judgment terminating the parental rights of the
biological parents and awarding permanent custody of S.M.I. to the County is supported by
competent and credible evidence. Having overruled the biological mother's two
assignments of error, we affirm the judgment of the Franklin County Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
BROWN and BRUNNER, JJ., concur.
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