Court of Appeals of Ohio, Eleventh District, Ashtabula
IN THE MATTER OF: D.H., E.S., AND A.S., NEGLECTED CHILDREN
from the Ashtabula County Court of Common Pleas, Juvenile
Division, Case No. 2015 JC 00006.
Margaret A. Draper, Assistant Prosecutor, ACCSB, Nicholas A.
Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt,
Assistant Prosecutor, Ashtabula County Courthouse, (For
R. Grabman, Law Offices of Michelle M. French, LLC, (For
G. Silakoski, (Guardian ad litem).
R. WRIGHT, P.J.
Appellant, Lisa Miller, appeals the termination of her
parental rights and the grant of permanent custody of her
three children, D.H., E.S., and A.S., to the Ashtabula County
Children Services Board (the Agency), appellee. We affirm.
David Hettmansperger fathered D.H, born in October of 2007,
and Joseph Shaw fathered E.S., born in July of 2011, and
A.S., born in October of 2012. Shaw and Hettmansperger do not
appeal the termination of their parental rights. Miller also
has two other teenager sons, in the custody and care of
others at the time of the proceedings, and who are not in
D.H., E.S., and A.S. were placed in the Agency's
temporary custody in January of 2015 following reports of
drug manufacturing and illegal drug use in Miller and
Shaw's home. Miller had custody of all three children
since their respective births. The complaint for temporary
custody also alleged repeated neglect of the children,
including the oldest child, D.H., being locked out of the
home, and all three children having little to no food and
poor supervision. It also detailed Miller's ongoing abuse
of illegal drugs as an additional ground for removal.
On April 10, 2015, the children were adjudicated dependent,
as alleged under R.C. 2151.04(C). All three children were
initially placed in a kinship home with Hettmansperger's
first cousin. However, D.H. was subsequently removed from the
home because he reportedly had inappropriate contact with the
kinship parents' biological daughter. D.H. was placed in
a structured, therapeutic foster care home, and E.S. and A.S.
remained together in the Hettmansperger's cousin's
home, with whom they are not related.
In August of 2015, D.H.'s father, Hettmansperger, moved
for legal custody of him.
The children remained in the Agency's custody until it
moved for permanent custody on August 16, 2016. It provided
three alternative reasons supporting its motion. As cause,
the Agency asserted that the children have been in its
custody for 12 or more months of a consecutive 22-month
period; that the children cannot and should not be placed
with any of their parents in a reasonable time; and that
Miller, Shaw, and Hettmansperger have continually failed to
correct the conditions causing the children to be placed in
the Agency's care.
The combined hearing addressing Hettmansperger's motion
for custody and the Agency's motion for permanent custody
was held November 28, 2016.
The guardian ad litem recommended, in her testimony and
reports, awarding permanent custody of all three children to
The magistrate issued her decision in December of 2016, and
Miller and Hettmansperger filed objections. On October 26,
2017, the trial court overruled their objections and adopted
the magistrate's decision permanently terminating
Miller's, Shaw's, and Hettmansperger's parental
rights regarding their respective children, and granted the
Agency's motion for permanent custody.
Miller raises one assignment of error:
"THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR
PERMANENT CUSTODY AS SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE."
Her assigned error raises four subarguments. Miller first
argues that the Agency failed to present clear and convincing
evidence that she would not be able to parent her children
within a reasonable time. Second, Miller claims that the
Agency did not establish that she failed to substantially
remedy the conditions initially causing the children to be
removed from her custody and her lack of commitment to the
children. Third, Miller asserts the Agency failed to use
reasonable efforts in assisting her to remedy the issues
causing the children's removal. Finally, she claims the
court's finding that it was in the children's best
interest to be placed in the permanent custody of the agency
A parent's right to raise a child is a basic civil right.
In re Phillips, 11th Dist. Ashtabula No.
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,
Pursuant to R.C. 2151.414(B)(1), a court may grant permanent
custody of a child to the state agency if it finds by clear
and convincing evidence that it is in the child's best
interests and one or more of the factors in R.C.
2151.414(B)(1)(a)-(e) applies. One of these factors is
whether the child or children have been in the temporary
custody of one or more public children services agencies for
12 or more months of a consecutive 22-month period. R.C.
"'Clear and convincing evidence is more than a mere
preponderance of the evidence; instead, it is evidence
sufficient to produce in the mind of the trier of fact a firm
belief or conviction as to the facts sought to be
established.' In re Aiken, 11th Dist. Lake No.
2005-L-094, 2005-Ohio-6146, ¶ 28." In re
M.G., 11th Dist. Geauga No. 2013-G-3162, 2014-Ohio-974,
In its 27-page decision, the court found that the children
had been in the custody of the state for more than 12 months
during a consecutive 22-month period. It also found that
Miller had failed to substantially remedy the issues causing
the children to be initially removed from her home and ...