In re R.G.

[Cite as In re R.G., 2023-Ohio-592.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: R.G. C.A. Nos. 30453
T.M. 30454
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE Nos. DN 21 03 0184
DN 21 03 0185
DECISION AND JOURNAL ENTRY
Dated: March 1, 2023
FLAGG LANZINGER, Judge.
{¶1} Appellant, T.M. (“Mother”), appeals from a judgment of the Summit County Court
of Common Pleas, Juvenile Division, that terminated her parental rights and placed her minor
children in the permanent custody of Summit County Children Services Board (“CSB”). This
Court affirms.
I.
{¶2} Mother is the biological mother of R.G., born October 5, 2016; and T.M., born
August 17, 2009. The children’s fathers had minimal involvement in the trial court proceedings
and did not appeal from the permanent custody judgment.
{¶3} During a prior involuntary case in 2018 and 2019, the juvenile court removed these
children from Mother’s custody because of her substance abuse problem. The children remained
2
placed outside her home in that case for more than one year. After Mother achieved a sustained
period of sobriety, the children were returned to her legal custody and the case was closed.
{¶4} Several months later, however, CSB filed new complaints, alleging that R.G. and
T.M. were neglected and dependent children because Mother had smoked crack cocaine and
marijuana on the afternoon of March 9, 2021, while at least T.M. was present in the home. The
juvenile court placed the children in the emergency temporary custody of CSB the same day.
{¶5} CSB’s complaint alleged the following relevant facts. T.M. was at home,
participating in an online class for school. During a break in his online class, T.M. left the room
with his computer and its camera still on. School personnel who were monitoring T.M.’s online
class saw Mother come into the room with a shoe box, from which she removed several items.
When they saw Mother put a powdery substance into a glass pipe and smoke it, they contacted
Akron Police.
{¶6} When the police came to her home later that day, Mother admitted that she had
been smoking marijuana but denied smoking crack cocaine. Mother tested positive, however, for
both marijuana and cocaine. Moreover, Mother later admitted that the children were removed
from her custody because she had been “caught on [T.M.’s] camera” smoking crack cocaine.
{¶7} Mother stipulated to the facts alleged in the complaint and the juvenile court
adjudicated the children dependent. The court placed the children in the temporary custody of
CSB and adopted the case plan as an order of the court. The case plan focused primarily on Mother
addressing her long-standing substance abuse problem. During the next several months, although
Mother engaged in some drug treatment, she continued to test positive for cocaine.
{¶8} CSB moved for permanent custody, alleging that Mother had failed to remedy the
conditions that caused the children to remain placed outside the home and that permanent custody
3
was in the children’s best interest. See R.C. 2151.414(B)(1)(a); R.C. 2151.414(E)(1); R.C.
2151.414(D)(1). Mother and the children, through counsel, alternatively requested that the trial
court grant Mother legal custody of the children or extend temporary custody for another six
months.
{¶9} Following an evidentiary hearing, the trial court terminated parental rights and
placed R.G. and T.M. in the permanent custody of CSB. Mother appeals and raises three
assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FOUND THAT
THE FIRST PRONG OF THE PERMANENT CUSTODY TEST WAS MET
UNDER R.C. 2151.414(B)(1)(A) AND 2151.414(E)(1) BECAUSE THE TRIAL
COURT’S DECISION WAS BASED ON AN INCORRECT FACT.
{¶10} Mother’s first assignment of error is that the trial court’s finding on the first prong
of the permanent custody test was not supported by the evidence. Mother cites to Juv.R.
40(D)(3)(b)(iv) and a plain error standard of review. The permanent custody hearing was not held
before a magistrate, however, but was held before the juvenile judge. By its explicit terms, Juv.R.
40 applies only to proceedings held before magistrates and is not applicable to this appeal. This
Court generally reviews a permanent custody decision issued after a hearing before the trial judge
to determine whether it was against the manifest weight of the evidence. See, e.g., In re H.S., 9th
Dist. Summit No. 30162, 2022-Ohio-1082, ¶ 8; In re G.W., 9th Dist. Summit No. 29966, 2021-
Ohio-3430, ¶ 10.
{¶11} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
4
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations and citations omitted.)
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence,
this Court “must always be mindful of the presumption in favor of the finder of fact.” Id. at ¶ 21.
{¶12} Before a juvenile court may terminate parental rights and award permanent custody
of a child to a proper moving agency, it must find clear and convincing evidence of both prongs
of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the temporary
custody of the agency for at least 12 months of a consecutive 22-month period; the child or another
child of the same parent has been adjudicated abused, neglected, or dependent three times; or that
the child cannot be placed with either parent, based on an analysis under R.C. 2151.414(E); and
(2) that the grant of permanent custody to the agency is in the best interest of the child, based on
an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re
William S., 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will
“produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be
established.” (Internal quotations omitted.) In re Adoption of Holcomb, 18 Ohio St.3d 361, 368
(1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶13} The trial court found that the first prong of the permanent custody test was satisfied
in this case because the children could not be returned to Mother’s custody within a reasonable
time or should not be returned to her custody because she had failed “continuously and repeatedly
to substantially remedy the conditions causing the child[ren] to be placed outside the child[ren]’s
home.” R.C. 2151.414(E)(1). Mother asserts that the trial court’s judgment is based on an
incorrect statement of fact: that the initial reason for the children’s removal from the home was
Mother’s drug use “in the presence of her children.”
5
{¶14} Mother does not dispute that the trial court had evidence before it that the children
were removed from her custody because of her drug use. In fact, at the hearing, she admitted that
she was “caught on camera” smoking crack cocaine while at least T.M. was present in the home.
Her sole argument is about the meaning of the court’s statement that she used drugs “in the
presence of her children.” Mother maintains that, because neither child was in the same room with
her when she used the drugs, she did not use the drugs in the children’s “presence.”
{¶15} Mother cites no legal authority, or even a dictionary definition, to support her
argument that the trial court’s statement that the children were “in her presence” necessarily meant
that her children were present in the same room as she, rather than present in her home, while she
was using drugs. At least one of the children, T.M., was present in the home while Mother smoked
crack cocaine during the afternoon while she was responsible for caring for him.
{¶16} Mother admittedly smoked cocaine in the room in which T.M. had just been
participating in online schooling. Presumably, he returned to that room shortly afterward, after his
break was over, and fumes were likely still in the air. Mother has failed to demonstrate that the
trial court’s statement about Mother using drugs in the “presence” of the children was erroneous.
{¶17} Moreover, this Court’s review of the trial court’s finding under R.C.
2151.414(E)(1) should not focus on this isolated statement made by the trial court. This Court
instead examines whether the evidence supported the trial court’s conclusion that Mother failed to
substantially remedy the conditions that caused the initial removal of the children as well as their
ongoing removal from the home. See In re J.H., 9th Dist. Summit No. 24555, 2009-Ohio-2223, ¶
9. Mother does not dispute that the children were removed from her custody and remained placed
outside her custody because of her long-standing problem with substance abuse. She stipulated to
an adjudication that they were dependent children for that reason.
6
{¶18} Mother further does not dispute that, at the time the agency filed its permanent
custody motion and, even by the time of the hearing, she had not complied with the case plan
requirement that she engage in regular drug treatment and demonstrate a period of sustained
sobriety. Mother continued to test positive for cocaine throughout this case, as recently as the
month before the hearing.
{¶19} More than one year into the second dependency case involving her children, Mother
explicitly recognized that her drug use affected her parenting ability and stated that she wanted to
get “clean” to be a better mother. She further testified that she had finally realized that she could
not become sober without help, so she had reengaged in drug treatment shortly before the
permanent custody hearing. Mother had no sober support system or any family that could assist
her with her responsibilities. At the time of the hearing, Mother admitted that she continued to use
cocaine and was still “trying to learn how to not use.”
{¶20} Given the undisputed evidence that Mother had made minimal progress in this
current case toward remedying her long-standing addiction to cocaine, she has failed to
demonstrate any error in the trial court’s first-prong finding under R.C. 2151.414(B)(1)(a) and
R.C. 2151.414(E)(1). Mother’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO
CONSIDER R.C. 2151.414(D)(1)(e) BECAUSE 2151.414(D)(1) REQUIRES ITS
CONSIDERATION AND [AT] LEAST TWO OF THE FACTORS
REFERENCED THEREIN ARE RELEVANT.
7
ASSIGNMENT OF ERROR III
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FOUND THAT IT
WAS IN THE BEST INTEREST OF THE CHILDREN TO GRANT
PERMANENT CUSTODY TO [CSB] BECAUSE THAT DECISION WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT
SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.
{¶21} This Court will address Mother’s second and third assignments of error together
because they both challenge the trial court’s determination that permanent custody was in the best
interest of the children. At the permanent custody hearing and again on appeal, Mother has
attempted to demonstrate that, because she is otherwise able to provide her children with food,
clothing, housing, and other necessities, her drug use has no detrimental impact on her children.
Mother relies on a line of cases from this Court, however, that do not involve analysis of the best
interest of children but instead pertain to dependency adjudications of children. See, e.g., In re
O.H., 9th Dist. Summit No. 25761, 2011-Ohio-5632; In re R.S., 9th Dist. Summit No. 21177,
2003-Ohio-1594.
{¶22} Whether Mother’s ongoing cocaine use negatively affected the children, and
warranted the state’s involvement in this case, is an issue that was already determined when the
children were adjudicated dependent during June 2021. See R.C. 2151.04(C). The trial court’s
adjudication of the children as dependent “implicitly involve[d] a determination of the
unsuitability” of Mother. In re C.R., 108 Ohio St.3d 369, 2006-Ohio-1191, ¶ 23. Moreover, the
order adjudicating R.G. and T.M. dependent children and placing them in the temporary custody
of CSB was a final, appealable order at that time and cannot be challenged in this appeal. See In
re Murray, 52 Ohio St.3d 155 (1990), syllabus; In re H.F., 120 Ohio St.3d 499, 2008-Ohio-6810,
¶ 18.
8
{¶23} This Court will instead focus its best interest review on the factors that the court
was explicitly required to consider under R.C. 2151.414(D)(1). In determining the best interest of
the children R.C. 2151.414(D)(1) required the trial court to 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 * * * ;
(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.
As required by R.C. 2151.414(D)(1), this Court will examine each of the “relevant” factors.
{¶24} Although Mother had a brief period of home visits with the children during this
case, her interaction with the children was limited primarily to weekly two-hour visits with them
that were supervised by CSB because Mother continued to test positive for cocaine. Mother
interacted well with the children in a supervised setting and supervisors observed a loving bond
between Mother and the children. The evidence was undisputed, however, that Mother continued
to regularly use cocaine. Mother expressed an understanding that she must stop using to regain
custody of the children and that she needed help to control her drug use. After having court-
ordered case plan services available to her for more than one year, however, she had just recently
reengaged drug treatment. Mother was not prepared to have the children transitioned back into
her home.
9
{¶25} One month before the hearing, the trial court appointed independent counsel to
represent the children because they did not agree with the recommendation of the guardian ad litem
that they should not be returned to Mother’s home. Both children loved Mother and wanted to
return to her custody, but they could not return to a home in which Mother continued to use
cocaine.
{¶26} The guardian ad litem, who had also been the guardian ad litem in the prior case
involving these children, recommended that the children be placed in the permanent custody of
CSB. He testified that he truly wanted Mother to achieve and maintain sobriety in this case, as she
had in the prior case. The guardian ad litem had encouraged Mother to work toward again
achieving sobriety but, based on his ongoing interactions with her, he did not believe that she was
prepared to stop using cocaine at that time.
{¶27} The custodial history of the children included two separate periods, in the prior case
and again in this case, during which the children were removed from Mother’s custody because of
her drug use. In each case, the children lived outside Mother’s custody for more than one year.
Although Mother asserts that this factor weighs in her favor because this case had not been pending
for one year when the agency moved for permanent custody, and because she proved in the prior
case that she could achieve sobriety and regain custody of her children, she did not demonstrate
similar success in this case.
{¶28} By the time of the permanent custody hearing, this case had been pending for well
over a year and Mother had made no progress toward reunification. During the past several years,
the children had spent more than two years living outside Mother’s custody and nearly four years
moving in and out of temporary placements. R.G., who was not yet six years old at the time of the
hearing, had spent most of his young life moving in and out of temporary placements.
10
{¶29} The children needed stability in their lives and Mother could not provide them with
a legally secure permanent placement because of her ongoing cocaine use. CSB had been unable
to find any suitable relatives who were willing and able to provide the children with a safe and
secure permanent home.
{¶30} Finally, under R.C. 2151.414(D)(1)(e), the trial court was required to consider
whether any of the factors set forth in R.C. 2151.414(E)(7) through (11) applied to the facts of this
case. The trial court implicitly determined that none of those factors were relevant and this Court
agrees.
{¶31} Mother, however, asserts that the trial court should have considered the factors set
forth in R.C. 2151.414(E)(8) and (9), which provide:
(8) The parent has repeatedly withheld medical treatment or food from the child
when the parent has the means to provide the treatment or food, and, in the case of
withheld medical treatment, the parent withheld it for a purpose other than to treat
the physical or mental illness or defect of the child by spiritual means through
prayer alone in accordance with the tenets of a recognized religious body.
(9) The parent has placed the child at substantial risk of harm two or more times
due to alcohol or drug abuse and has rejected treatment two or more times or refused
to participate in further treatment two or more times after a case plan issued
pursuant to section 2151.412 of the Revised Code requiring treatment of the parent
was journalized as part of a dispositional order issued with respect to the child or
an order was issued by any other court requiring treatment of the parent.
{¶32} There was no evidence presented in this case that Mother had withheld medical
treatment or food from the children, or that she had placed them at substantial risk of harm because
of her drug use or rejected drug treatment two or more times. These factors are not relevant to this
case, so the plain language of R.C. 2151.414(D)(1) did not require the trial court to consider them.
{¶33} In fact, Mother essentially concedes that these factors are not relevant to the facts
of this case because she argues that she did not commit any of the acts set forth in these provisions.
She instead suggests that these factors “tilt” in her favor because her drug use was not so bad that
11
she had neglected her children in the manner set forth in these provisions. Mother’s argument
does not comport with the plain meaning of the term “relevant” in R.C. 2151.414(D)(1), however.
The factors were not relevant, so there was no reason for the trial court to consider them.
{¶34} Given the substantial evidence before the trial court that Mother could not provide
her children with a suitable home, Mother has failed to demonstrate that the trial court lost its way
in determining that permanent custody was in the best interest of R.G. and T.M. See Eastley, 2012-
Ohio-2179, at ¶ 20. Mother’s second and third assignments of error are overruled.
III.
{¶35} Mother’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
12
JILL FLAGG LANZINGER
FOR THE COURT
SUTTON, P. J.
STEVENSON, J.
CONCUR.
APPEARANCES:
JAYSEN W. MERCER, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.
BENJAMIN AYERS, Attorney at Law, for Appellee.
DAVID M. LOWRY, Attorney at Law, for Appellee.
NEIL P. AGARWAL, Guardian ad Litem.