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In re B.T.

Court of Appeals of Ohio, Eleventh District, Ashtabula

September 5, 2017

IN THE MATTER OF: B.T., D.T., AND C.T.

         Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 2014 JC 00030.

          Mandy J. Gwirtz, Mandy Gwirtz, LLC, (For Appellant Mother).

          Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Jefferson Street, Jefferson, Margaret A. Draper, Assistant Prosecutor (For Appellee Ashtabula County Children Services Board).

          Anita B. Staley, Barthol & Staley, L.P.A., (Guardian ad litem).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Teresa Toland, appeals the trial court's decision terminating her parental rights and granting permanent custody of her children, B.T., D.T., and C.T., to the Ashtabula County Children Services Board (ACCSB). We affirm.

         {¶2} ACCSB filed its complaint for protective supervision in June of 2014. Its verified complaint states that it has been involved with the family since April of 2014 due to concerns of neglect and because the family was homeless and living in a motel room. There was also a history of abuse of B.T. by mother's live-in boyfriend at the time, who is also C.T.'s father.

         {¶3} On December 22, 2014, the trial court granted ACCSB temporary custody of the children for several reasons, including a lack of an adequate home and appellant's failure to comply with her mental health and drug screening requirements. The children went into foster care. At the time of the final hearing, they remained in the same home in which they had been placed in December 2014. The foster family wants to adopt all three children.

         {¶4} In July 2015, the ACCSB moved for permanent custody of the three children alleging in part that they cannot be placed with either parent in a reasonable time. Final hearing was held June 9, 2016, and the magistrate found that the children could not be placed with their parents in a reasonable time and that a grant of custody was in the best interest of the children. The trial court agreed.

         {¶5} Appellant raises one assigned error:

         {¶6} "The trial court erred by granting permanent custody of B.T., D.T., and C.T. to the Ashtabula County Children Services Board contrary to the manifest weight of the evidence."

         {¶7} A parent's right to raise a child is a basic civil right. In re Phillips, 11th Dist. No. Ashtabula 2005-A-0020, 2005-Ohio-3774, ¶22, citing In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). "The parent's rights, however, are not absolute. Rather, '"it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the pole star or controlling principle to be observed.'" In re Cunningham (1979), 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (quoting In re R.J.C. (Fla.App. 1974), 300 So.2d 54, 58)." In re West, 4th Dist. Athens No. 05CA4, 2005-Ohio-2977, ¶31.

         {¶8} Before a juvenile court can terminate parental rights and award permanent custody to the requesting agency, it must conduct a hearing and apply a two-pronged analysis. First, a trial court must find by clear and convincing evidence that one or more of the factors in R.C. 2151.414(B)(1)(a)-(e) applies. One of these factors is whether the children cannot be placed with either of the child's parents within a reasonable time or should not be placed with their parents based on an analysis of R.C. 2151.414(E). R.C. 2151.414(B)(1)(a); In re C.C., 11th Dist. Trumbull Nos. 2016-T-0050 & 2016-T-0058, 2016-Ohio-7447, ¶74.

         {¶9} Second, upon finding one or more of these factors applicable, the court then must determine whether granting custody of the child to the agency is in the child's best interests pursuant to the analysis in R.C. 2151.414(D). In re L.M.R., 11th Dist. Lake No. 2016-L-096, 2017-Ohio-158, ¶34-35.

         {¶10} The trial court proceeded under R.C. 2151.414(B)(1), which states:

         {¶11} "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:

         {¶12} "(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 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} The trial court likewise made findings under R.C. 2151.414(E), which provides in part:

         {¶14} "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:

         {¶15} "(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 ...


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