In re M.S.

[Cite as In re M.S., 2021-Ohio-2331.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
:
:
IN THE MATTER OF: : Appellate Case Nos. 2021-CA-12
: 2021-CA-13
M.S., B.S., J.S. : 2021-CA-14
:
: Trial Court Case Nos. 2014-157
: 2014-158
: 2019-547
:
(Appeal from Common Pleas
Court – Juvenile Division)
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OPINION
Rendered on the 9th day of July, 2021.
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IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, Appellate Division, 50 East Columbia Street, Suite 449,
Springfield, Ohio 45502
Attorney for Plaintiff-Appellee, CCDJFS
GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Avenue, Dayton, Ohio
45409
Attorney for Mother
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DONOVAN, J.
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{¶ 1} Appellant Mother appeals from judgments of the Clark County Court of
Common Pleas, Juvenile Division, which terminated her parental rights with respect to
her children, M.S., B.S., and J.S. and ordered that the children be placed in the permanent
custody of the Clark County Department of Job and Family Services (“CCDJFS”).
Mother filed a timely notice of appeal on February 16, 2021.1
{¶ 2} The minor children were born to Mother and Father in November 2012 (J.S.),
January 2014 (B.S.), and February 2018 (M.S.). CCDJFS initially became involved with
Mother in early 2014 when B.S. tested positive for heroin at birth. On February 11, 2014,
CCDJFS filed a complaint in the trial court requesting that it find J.S. and B.S. to be
dependent children. Thereafter, J.S. and B.S. were adjudicated dependent; on February
25, 2014, the parties filed an Agreed Entry for Protective Supervision for the children, and
on February 27, 2014, the trial court granted an ex parte order placing J.S. and B.S. in
the custody of CCDJFS. On March 19, 2014, the trial court filed a judgment entry
granting temporary custody of J.S. and B.S. to CCDJFS.
{¶ 3} In October 2014, J.S. and B.S. were returned to the legal custody of Mother
and Father with an order of protective supervision. In January 2015, the trial court found
Mother in contempt for abusing drugs not prescribed to her in violation of her case plan
objectives. The trial court then extended the protective order of supervision for J.S. and
B.S. for an additional period of six months in April 2015. On July 22, 2015, the trial court
terminated the order of protective supervision with respect to J.S. and B.S.
{¶ 4} Approximately four years later, on July 8, 2019, CCDJFS filed a complaint
1At the time of these proceedings, the father of the children was deceased and therefore
had no involvement in the case.
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and a request for shelter care for J.S. and B.S., as well as the recently born third child,
M.S. Specifically, CCDJFS became aware that Mother had been smoking and injecting
methamphetamine. The trial court granted the request for shelter care for all three
children in an entry filed the same day. The record establishes that Mother agreed to
the adjudication of dependency for each of the three children. On September 4, 2019,
temporary custody of the three children was awarded to a foster family. On November
19, 2019, CCDJFS filed a motion to modify the temporary custody of the children. In
response to the motion, the trial court placed all three children in the interim temporary
custody of CCDJFS, and on January 17, 2020, the trial court placed the children in the
temporary legal custody of CCDJFS.
{¶ 5} In May 2020, CCDJFS filed a motion to extend temporary custody of the
children for another six months in order to allow Mother to complete her case plan
objectives. On July 15, 2020, the guardian ad litem (GAL) filed a motion requesting that
permanent custody of the children be awarded to CCDJFS. A hearing was held before
a magistrate with respect to the GAL’s motion August 7 and 10, 2020. On October 8,
2020, the magistrate denied CCDJFS’s motion to extend temporary custody, granted the
GAL’s motion, and ordered that J.S., B.S., and M.S. be placed in the permanent custody
of CCDJFS.
{¶ 6} Mother filed objections to the magistrate’s decision, and she filed
supplemental objections after receipt of the transcript of the hearing before the
magistrate. On January 21, 2021, the trial court overruled Mother’s objections and
adopted the magistrate’s decision in its entirety, thereby granting permanent custody of
the children to CCDJFS and terminating Mother’s parental rights in each case.
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{¶ 7} Mother now appeals. Her sole assignment of error is as follows:
THE TRIAL COURT ERRED IN GRANTING THE MOTION OF THE
GUARDIAN AD LITEM FOR PERMANENT CUSTODY AND DENYING
THE MOTION OF FAMILY AND CHILDREN’S SERVICES OF CLARK
COUNTY FOR A FIRST EXTENSION OF TEMPORARY CUSTODY.
{¶ 8} Mother contends that the trial court erred when it granted the GAL’s motion
for permanent custody and denied CCDJFS’s motion for a first extension of temporary
custody of J.S., B.S., and M.S. We note that while CCDJFS initially supported an
extension of temporary custody at the hearing before the magistrate, it now argues on
appeal that it is in the best interest of the children for them to remain in the permanent
custody of CCDJFS.
{¶ 9} The United States Supreme Court has described the interest of parents in
the care, custody, and control of their children as “perhaps the oldest of the fundamental
liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct.
2054, 147 L.Ed.2d 49 (2000). The Ohio Supreme Court has recognized that “there is an
essential and basic civil right to conceive and raise children.” In re K.H., 119 Ohio St.3d
538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 39. However, “[t]he fundamental interest of
parents is not absolute.” In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829,
¶ 11. “The state has broad authority to intervene to protect children from abuse and
neglect.” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court,
Prob. Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380 ¶ 58 (O'Connor, C.J.,
dissenting), citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28.
{¶ 10} A court's decision to terminate parental rights will not be overturned “if the
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record contains competent, credible evidence by which the court could have formed a
firm belief or conviction that the essential statutory elements for a termination of parental
rights have been established.” (Citations omitted.) In re A.U., 2d Dist. Montgomery No.
22264, 2008-Ohio-186, ¶ 15. “We review the trial court's judgment for an abuse of
discretion.” In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14, citing In re
C.F. at ¶ 48 (applying the abuse-of-discretion standard to trial court's findings under R.C.
2151.414).
{¶ 11} A two-part test applies to determine whether to grant a public children
services agency's motion for permanent custody. R.C. 2151.414(B)(1) provides that a
court may grant permanent custody if it clearly and convincingly finds that (1) the child's
best interest lies in granting permanent custody to the agency, and (2) any of the statutory
alternatives apply.
{¶ 12} R.C. 2151.414 provides in relevant part as follows:
(B)(1) Except as provided in division (B)(2) of this section, the court may
grant permanent custody of a child to a movant if the court determines at
the hearing held pursuant to division (A) of this section, by clear and
convincing evidence, that it is in the best interest of the child to grant
permanent custody of the child to the agency that filed the motion for
permanent custody and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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 has not been in the temporary custody of one or more
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public children services agencies or private child placing agencies for twelve
or more months of a consecutive twenty-two-month period if, 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, and the child cannot be placed with either of the child's parents within
a reasonable time or should not be placed with the child's parents.
{¶ 13} In determining a child's best interest, R.C. 2151.414 instructs courts to
consider “all relevant factors,” including five statutory factors:
(a) The interaction and interrelationship of the child with the child's parents,
siblings, relatives, foster caregivers, 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 * * *;
(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.
R.C. 2151.414(D)(1). “No one element is given greater weight or heightened
significance.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 57.
{¶ 14} R.C. 2151.414(E) further provides:
(E) In determining at a hearing held pursuant to division (A) of this section
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or for the purposes of division (A)(4) of section 2151.353 of the Revised
Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child's
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) Following 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 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.
{¶ 15} As previously stated, J.S. and B.S. were removed from Mother’s custody in
2014 because of her drug use, and all three children were removed from Mother’s custody
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again in 2019 because of her use of illegal drugs. Additionally, at the time of the
permanent custody hearing, the children had been in the temporary custody of CCDJFS
for approximately 13 consecutive months.
{¶ 16} In 2019, CCDJFS developed a reunification case plan for Mother with the
following objectives: 1) maintain safe and stable housing; 2) have a drug and alcohol
assessment completed and follow all recommendations; 3) screen negative for all
substances; 4) sign releases of information so that CCDJFS could speak with her
providers; 5) have a mental health assessment and follow all recommendations; 6) obtain
and maintain employment and refrain from violent relationships; 7) participate in Family
Treatment Court; and 8) complete a parenting psychological exam.
{¶ 17} As found by the trial court, the record established that Mother failed to obtain
safe and stable housing that would pass a home study. Additionally, after being found
in possession of methamphetamine and drug paraphernalia, Mother was incarcerated
from the summer of 2019 until February 11, 2020, when she entered the inpatient program
at McKinley Hall, where she remained until March 13, 2020. The record established that
Mother had completed a drug and alcohol assessment and followed through with the
recommendations for treatment. Mother was also enrolled in Family Treatment Court in
March 2020, and she advanced from Phase I to Phase II in June 2020. However, Mother
was placed back into Phase I in July 2020 in light of her use of a drug not legally
prescribed to her, gabapentin. Furthermore, Mother missed two weeks of Family
Treatment Court because of an injury which she alleged occurred while she was at work,
but she failed to provide any documentation to support her injury claim at the permanent
custody hearing. The record established that Mother was able to gain employment, but
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was unable to maintain said employment.
{¶ 18} The record also established that Mother had not had any contact with the
children for many months. With respect to their current living arrangement, the trial court
found that all three children were bonded with their foster family, and J.S. possessed
sufficient maturity to express his wish to remain with his foster parents. The trial court
also found that the children were adjusting well to their living situation and were not
exhibiting any behavioral issues, and their foster family was committed to finalizing
permanent adoption of the children. Additionally, the trial court found that the children’s
relationship with Mother was strained because of her ongoing drug use and domestic
violence in the household, and CCDJFS was concerned with Mother’s illegal use of
gabapentin and her potential for relapse. The trial court also noted that the children had
been in their current foster placement since November 2019, approximately 13 months.
Thus, at the time of the permanent custody hearing, the children had been out of Mother’s
custody for more than 12 of the last 22 months.
{¶ 19} With respect to Mother’s drug use, the trial court found and the record
established that it had been an ongoing issue since 2014, when J.S. and B.S. were
removed from her custody after B.S. tested positive for heroin a birth. Additionally,
Mother failed to report her use of gabapentin without a prescription for several months,
lied about it to CCDJFS when initially confronted, and then continued to test positive for
the drug five more times after disclosure. Mother argues that the trial court gave too
much weight to her illegal use of gabapentin, describing it as “Mother’s only sin.”
Appellant’s Brief, p. 8. Specifically, Mother points out that gabapentin is not an illegal
substance. However, several Ohio courts have taken into account an individual’s use of
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gabapentin when terminating parental rights because the drug is “commonly abused by
opiate addicts or people with an opiate abuse problem in lieu of the individual's available
opiate.” See In re J.P., 8th Dist. Cuyahoga No. 107849, 2019-Ohio-1657, ¶ 22.
Furthermore, Dr. Laura Kaplan, a licensed clinical psychologist who evaluated Mother,
testified at the permanent custody hearing that she was concerned regarding the potential
for future drug abuse by Mother and also a lack of accountability with respect to her failure
to divulge her use of drugs not prescribed to her. Accordingly, we find that the trial court
did not place too much weight on Mother’s non-prescribed use of gabapentin.
{¶ 20} In sum, the record established that CCDJFS made every effort to reunite
Mother with the children. Mother's failure to complete the case plan, however,
established that she was either unwilling or incapable of adequately caring for the
children. Although Mother made some effort to complete her case plan objectives, the
record established that she failed to provide the children with safe and stable housing,
failed to maintain stable employment, and regressed in Family Treatment because of her
non-prescribed use of gabapentin. Therefore, we find that the trial court did not err when
it found that clear and convincing evidence was adduced at the permanent custody
hearing which supported an award of permanent custody of the children to CCDJFS and
the termination of Mother's parental rights.
{¶ 21} Mother’s sole assignment of error is overruled.
{¶ 22} Mother’s assignment of error having been overruled, the judgment of the
trial court in each case is affirmed.
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HALL, J. and EPLEY, J., concur.
Copies sent to:
Ian A. Richardson
Gary C. Schaengold
Hon. Katrine Lancaster