In re A.R.

[Cite as In re A.R., 2021-Ohio-3615.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

:
:
IN RE: A.R. : Appellate Case No. 29153
:
: Trial Court Case No. G-2015-005908-
: 0P, 0S
:
: (Juvenile Appeal from
: Common Pleas Court)
:

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OPINION

Rendered on the 8th day of October, 2021.

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MATHIAS H. HECK, JR., by J. JOSHUA RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Appellee MCCS

ALANA VAN GUNDY, Atty. Reg. No. 0100651, P.O. Box 245, Bellbrook, Ohio 45305
Attorney for Appellant Mother

.............

DONOVAN, J.
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{¶ 1} Mother appeals from a judgment of the Montgomery County Court of

Common Pleas, Juvenile Division, which terminated her parental rights and granted

permanent custody of Mother's child, A.R., to Montgomery County Children Services

(MCCS). Mother filed a timely notice of appeal on May 28, 2021. A.R.’s father did not

appeal the termination of his parental rights.

{¶ 2} A.R. was born in May 2013. On September 22, 2015, when A.R. was

approximately two years old, MCCS filed a complaint alleging that she was a dependent

child. On December 17, 2015, A.R. was adjudicated a dependent child and placed in

the custody of maternal relatives. On August 30, 2016, temporary custody of A.R. was

transferred to MCCS upon a motion filed by the agency. On July 26, 2017, MCCS filed

a motion for permanent custody of A.R., or in the alternative, for an award of legal custody

of A.R. to the non-relative foster parents with whom she had been living. On December

5, 2017, the trial court granted legal custody of A.R. to her non-relative foster parents.

{¶ 3} On December 10, 2018, A.R. was placed in the interim temporary custody of

MCCS. On April 29, 2019, MCCS was awarded temporary custody of A.R., and on

November 19, 2019, MCCS filed a motion for permanent custody of A.R. On September

25, 2020, a permanent custody hearing was held before a magistrate.

{¶ 4} The record established that Mother was placed on a case plan with the

following objectives: 1) establish sufficient income and adequate housing; 2) engage in

mental health treatment and medication management; 3) refrain from domestic violence

and physical abuse with her boyfriend; 4) attend a course on healthy relationships; 5)

engage in family counseling, including counseling with A.R.’s two older sisters; 6) refrain
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from discussing adult topics and situations in front of A.R.; 7) visit A.R. on a weekly basis;

8) follow the recommendations of her primary care physicians and specialists and take

her medications as prescribed; 9) sign releases of information for MCCS and for

healthcare providers; 10) attend A.R.’s appointments; and 11) acknowledge that if her

boyfriend continued to live with her, he would be required to engage in a case plan before

reunification could occur.

{¶ 5} Mother’s MCCS caseworker, Rondel Boyd, testified that Mother failed to

verify her income, and the only employment verification she provided was a photograph

of a 25- to 30-hour weekly schedule at a Wendy’s restaurant. Boyd also testified that

Mother lived in an efficiency apartment with one bed. Boyd testified that the apartment

was always dirty whenever she visited Mother, and the floor was covered in trash,

including empty beer cans and cigarette butts. At one point during the course of these

proceedings, Mother’s apartment was infested by bed bugs. Boyd testified that the

apartment had previously flooded, and the carpet, which had not been since removed,

smelled like mildew; on some occasions when she visited Mother, Boyd would not enter

the apartment because of the intense odor.

{¶ 6} The record also established that Mother had been diagnosed with anxiety,

bipolar disorder, and post-traumatic stress disorder, but had stopped taking her

prescribed medication during the pendency of the proceedings. Boyd testified that

MCCS had also never received any verification of medical treatment from Mother. At

one point Mother was removed from treatment at Eastway Services because she

repeatedly missed appointments. Boyd testified that Mother continued to speak
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inappropriately to and around A.R. regarding adult topics, including other children’s

sexual behaviors. Furthermore, Boyd testified that Mother and her boyfriend were

physically violent with each other. Mother was even arrested on suspicion of felonious

assault in regard to an incident in which she allegedly sliced her boyfriend’s arm with a

box cutter. During the pendency of the proceedings, Mother was also arrested for arson

in relation to a fire that occurred at another apartment in her complex, and she spent ten

days in jail. The record is unclear regarding the status and/or disposition, if any, with

respect to these offenses.

{¶ 7} Boyd testified that, despite being referred to a program, Mother failed to

attend any healthy relationship courses. Additionally, Mother visited A.R. sporadically,

approximately 65 percent of the time. According to Boyd, Mother reported that her

boyfriend had a substance abuse problem and used methamphetamine. Mother’s

boyfriend also informed Boyd that he had no intention of complying with MCCS as it

related to Mother’s attempted reunification with A.R., and he would not participate in a

case plan.

{¶ 8} Even though Father did not appeal the termination of his parental rights with

respect to A.R., it is noteworthy that by his own admission to Boyd, he had been convicted

of rape in the past and had served a significant prison sentence. Boyd testified that part

of Father’s case plan was to engage in sex offender treatment, which he refused to do.

Additionally, Father had no contact with A.R. from May 17, 2019, through September 17,

2019. The trial court found that Father had abandoned A.R.
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{¶ 9} A.R.’s foster mother, D.C., also testified at the permanent custody hearing.

D.C. testified that A.R. had been under her and her husband’s care and supervision since

December 7, 2018. D.C. also testified that A.R. had a loving relationship with everyone

in her foster home, including D.C.’s older children and her extended family. At the time

of the permanent custody hearing, A.R. was participating in online schooling due to the

COVID pandemic, but D.C. testified that A.R. previously had attended a day care, played

flag football, and had been involved in activities with D.C.’s church. D.C. testified that

A.R. hiked with her foster family, and they rode bikes together. D.C. testified that A.R.

was a very athletic child, had no identified special needs, and was not on any type of

individual education plan (IEP). D.C. testified that she and her husband were interested

in adopting A.R., and there was adequate space for A.R. in D.C.’s home.

{¶ 10} On October 31, 2020, the magistrate granted MCCS's motion for permanent

custody of A.R. Mother filed timely objections and supplemental objections to the

magistrate's decision. On May 12, 2021, the trial court overruled Mother's objections and

awarded permanent custody of A.R. to MCCS.

{¶ 11} It is from this judgment that Mother now appeals.

{¶ 12} Mother’s sole assignment of error is as follows:

THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO MONTGOMERY COUNTY CHILDREN’S SERVICES

BECAUSE THAT AGENCY FAILED TO PROVE BY CLEAR AND

CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN THE

BEST INTEREST OF THE MINOR CHILD.
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{¶ 13} Mother contends that the trial court erred when it awarded permanent

custody of A.R. to MCCS, finding that it was in the child's best interest. Specifically,

Mother argues that the evidence adduced at the permanent custody hearing established

that she had made significant progress toward completing her case plan objectives and

should have been allowed more time to successfully be reunited with A.R.

{¶ 14} This Court has previously noted:

The United States Supreme Court has recognized that parents'

interest in the care, custody, and control of their children “is perhaps the

oldest of the fundamental liberty interests recognized” by the court. Troxel

v. Granville (2000), 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49.

Parents who are suitable persons have a “paramount” right to the custody

of their minor children. In re Perales (1977), 52 Ohio St.2d 89, 97, 6 O.O.3d

293, 369 N.E.2d 1047.

In a proceeding for the termination of parental rights, all the court's

findings must be supported by clear and convincing evidence. R.C.

2151.414(E); In re J.R., Montgomery App. No. 21749, 2007-Ohio-186, at

¶ 9. * * * We review the trial court's judgment for an abuse of discretion.

See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 48

(applying abuse-of-discretion standard to trial court's findings under R.C.

2151.414).

In re K.W., 185 Ohio App.3d 629, 2010-Ohio-29, 925 N.E.2d 181, ¶ 14-15 (2d Dist.).
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{¶ 15} In applying an abuse-of-discretion standard, we will not disturb the trial

court’s decision on evidentiary grounds ‘if the 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.’ ” In the

Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 6 (2d Dist.), citing In re L.C., 2d Dist.

Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. The phrase “abuse of discretion” implies

a decision which is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

{¶ 16} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute

requires the court to find, by clear and convincing evidence, that: (1) granting permanent

custody of the child to the agency is in the best interest of the child; and (2) either the

child (a) cannot be placed with either parent within a reasonable period of time or should

not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of

the child; or (d) has been in the temporary custody of one or more public or private

children services agencies for 12 or more months of a consecutive 22-month period. In

re L.W., 2d Dist. Montgomery No. 26243, 2014-Ohio-4507, ¶ 11, citing R.C.

2151.414(B)(1).

{¶ 17} R.C. 2151.414(D)(1) directs the trial court to consider all relevant factors

when determining the best interest of the child, including but not limited to: (a) the

interaction and interrelationship of the child with the child's parents, relatives, foster
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parents and any other person who may significantly affect the child; (b) the wishes 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 12 or more months of a consecutive 22-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; and (e) whether any of

the factors in R.C. 2151.414(E)(7) through (11) are applicable. “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.

{¶ 18} R.C. 2151.414(E) further provides:

(E) In determining 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 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, * * * 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
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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.

(2) Chronic mental illness, chronic emotional illness, intellectual disability,

physical disability, or chemical dependency of the parent that is so severe

that it makes the parent unable to provide an adequate permanent home

for the child at the present time and, as anticipated, within one year after

the court holds the hearing pursuant to division (A) of this section or for the

purposes of division (A)(4) of section 2151.353 of the Revised Code;

***

(4) 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;

***

(10) The parent has abandoned the child.

***
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(14) The parent for any reason is unwilling to provide food, clothing, shelter,

and other basic necessities for the child or to prevent the child from suffering

physical, emotional, or sexual abuse or physical, emotional, or mental

neglect.

***

(16) Any other factor the court considers relevant.

{¶ 19} Mother does not dispute that, at the time of the permanent custody hearing

on September 25, 2020, A.R. had been in the custody of the MCCS for almost five years,

well in excess of 12 or more months of a consecutive 22-month period.

{¶ 20} As previously stated, Mother was placed on a case plan with the following

objectives: 1) establish sufficient income and adequate housing; 2) engage in mental

health treatment and medication management; 3) refrain from domestic violence and

physical abuse with her boyfriend; 4) attend a course on healthy relationships; 5) engage

in family counseling, including counseling with A.R.’s two older sisters; 6) refrain from

discussing adult topics and situations in front of A.R.; 7) visit A.R. on a weekly basis; 8)

follow the recommendations of her primary care physicians and specialists and take her

medications as prescribed; 9) sign releases of information for MCCS and for healthcare

providers; 10) attend A.R.’s appointments; and 11) acknowledge that if her boyfriend

continued to live with her, he would be required to engage in a case plan before

reunification could occur.

{¶ 21} According to Boyd, Mother had failed to verify her income; she only provided

a photograph of a 25- to 30-hour weekly schedule at a Wendy’s restaurant. Mother also
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lived in an efficiency apartment with only one bed, and the apartment was always dirty

when Boyd visited Mother, including trash on the floor. There had been a past bed bug

infestation. Boyd testified that the apartment had previously flooded, and the carpet

smelled like mildew and had an intense odor.

{¶ 22} Mother had been diagnosed with anxiety, bipolar disorder, and post-

traumatic stress disorder, but had stopped taking her prescribed medication for these

conditions. MCCS had also never received any verification of medical treatment from

Mother. Boyd testified that at one point Mother was removed from treatment at Eastway

Services because she had repeatedly missed appointments.

{¶ 23} Boyd testified that Mother continued to speak inappropriately to and around

A.R. regarding adult topics, and Mother and her boyfriend were physically violent with

each other. Mother had been arrested on suspicion of felonious assault after she

allegedly sliced her boyfriend’s arm with a box cutter. Mother had also been arrested for

arson, for which she spent ten days in jail.

{¶ 24} Boyd testified that Mother failed to attend any healthy relationship courses

despite being referred to a program, and she visited A.R. only sporadically. Boyd also

testified that Mother reported that her boyfriend had a substance abuse problem and had

no intention of complying with any MCCS case plan.

{¶ 25} Regarding her current living arrangement, the trial court found that A.R. was

bonded with her foster family, with whom she had lived since December 2018. The trial

court also found that A.R. was adjusting well to her living situation and was not exhibiting
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any behavioral issues, and her foster family was committed to finalizing permanent

adoption of A.R.

{¶ 26} We conclude that the trial court did not abuse its discretion when it found

that it was in A.R.’s best interest to remain in the custody and care of her foster family

where she is apparently thriving. In sum, the record established that MCCS made every

reasonable effort to reunite Mother with A.R. Mother's failure to complete the case plan,

however, established that she was either unwilling or incapable of adequately caring for

A.R. Although Mother made some effort to complete her case plan objectives, the record

established that she failed to provide A.R. with safe and adequate housing, failed to

maintain stable employment, failed to properly address her abusive relationship with her

boyfriend, failed to take the medication for her mental health issues, and failed to take the

necessary steps in order to have an appropriate parent/child relationship with A.R.

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 A.R. to MCCS and the termination of Mother's parental rights.

{¶ 27} Mother's sole assignment of error is overruled.

{¶ 28} Mother's assignment of error having been overruled, the judgment of the

trial court is affirmed.

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HALL, J. and WELBAUM, J., concur.
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Copies sent to:

Mathias H. Heck, Jr.
J. Joshua Rizzo
Alana Van Gundy
Markus Moll, Jr.
Misty M. Connors, GAL
Hon. Anthony Capizzi