from the Franklin County C.P.C. No. 16JU-0730 Court of Common
Pleas, Division of Domestic Relations, Juvenile Branch
Lawrence L. Levinson, for appellant.
J. McClaren, for appellee Franklin County Children Services.
1} Judge Rapp in his detailed opinion for the
domestic court laid out many of the challenges confronting
four-year-old S.M.I. and his caregivers in this permanent
[S.M.I.] has a congenital heart defect. He has had a leg
amputation below the knee and requires a wheel chair. There
is a small chance he may eventually be fitted with a
prosthesis and successfully walk. He has had a brain
hemorrhage and has cerebral palsy. He cannot eat on his own.
All nourishment requires feeding tubes (G/J Tubes). He
aspirates and requires suction every 5 minutes to every hour
without which he would suffocate and/or contract pneumonia.
He is to not travel if the temperature is below 40 degrees.
Routine medical appointments often need to be rescheduled. He
requires a ventilator and tracheotomy care and monitoring by
a pulse oximeter 24/7. In addition to frequent medical
appointments, he receives physical and speech therapy weekly.
He is very developmentally delayed. He makes sounds but
cannot speak or walk. He is * * * learning to bear weight and
sit in a high chair. He has approximately nine prescriptions
that must be administered six times throughout each day.
May 2, 2018 Jgmt. Entry Granting Permanent Custody at 8-9.
2} Born "24 weeks premature * * *, [S.M.I.]
spent his first seventeen months in hospitalization after
which he was placed in a foster home licensed to care for
medically fragile children. [He] has never lived with either
[biological] parent." Id. at 6. He has lived in
the home and care of his foster parents since June 1, 2016.
Id. at 7. S.M.I. "is bonded with his foster
parents and the other members of his foster family. His
bedroom is in the center of the first floor of the house and
he is also the center of attention. He is very comfortable in
his current foster home. [Through extraordinarily commendable
efforts, ] [t]he foster parents are able to meet [his] needs.
The foster parents are not prospective adoptive
parents." Id. at 12 (emphasis omitted).
3} The domestic court opinion describes the
circumstances under which the Franklin County Children
Services agency ("the County") was granted
temporary custody of S.M.I. as a dependent child on January
26, 2016; how after a no contest plea pursuant to Juv.R.
29(C), the trial court approved reunification "Case Plan
Number 2" as filed April 14, 2016; that on June 1, 2016,
with no appeal having been taken from the
adjudication/disposition entry, the foster parents took
S.M.I. into their home; and that the court granted a
six-month extension of the County's custody over S.M.I.
on January 24, 2017, while also adopting reunification Case
Plan 2.02. Id. at 6-7. On February 1, 2017, the
trial court determined that the County had "made
reasonable efforts to prevent the continued removal of the
child from the home and to implement a permanency plan."
Feb. 1, 2017 Findings of Fact and Conclusions of Law.
4} The County filed its motion for permanent custody
on June 22, 2017. The trial court conducted a termination
hearing on March 21, 2018 and heard testimony from
S.M.I.'s biological mother and father, his foster mother,
his guardian ad litem, and the County case worker.
5} The domestic court granted permanent custody of
S.M.I. to the County. Although the Judgment Entry from which
S.M.I.'s mother now appeals appropriately assesses the
relevant legal standards point by point, it is fair to
characterize the decision as informed generally on the one
hand by the fact that S.M.I. needs-that is, that he
absolutely depends upon-"24/7 care" requiring
"specialized knowledge, skills," undeviating
vigilance, and on the other by a demonstrated inability or
unwillingness on the part of his biological parents to
acquire that knowledge and skill and follow through on his
doubtlessly daunting needs. Compare, e.g., id. at
8-9 (critical need for unstinting, never neglected care)
with id. at 12 (reciting "Parents' failure
to complete the reunification case plan, their lack of
[achieving] training to meet [S.M.I.'s] needs, and
Parents' lack of establishing a bond with [him]").
6} The domestic court emphasized that "[t]here
was absolutely no evidence to suggest that Mother and Father
had not appropriately cared for [S.M.I.'s] four
siblings." Id. at 8. But as a "medically
fragile" child, S.M.I. presents special and essential
needs that the court found his biological parents (who do not
reside together) do not and are not likely to meet. See,
e.g., id. at 9, 11 ("Parents failed to meet
[S.M.I.'s] basic needs, an essential component of the
case plan"; "Parents failed to present credible and
reasonable explanations of their failure to visit or
contact" him; he "has significant special needs
that Parents are unable or unwilling to provide"). By
contrast, the court found, S.M.I.'s foster parents
"received training and are licensed to provide foster
care for medically fragile children, [and] the foster mother
[a retired nurse] received additional training over a period
of two weeks before [S.M.I.] was released from the hospital
to the foster home." Id. at 8.
7} In asking us to reverse the grant of permanent
custody and to instruct that the County be told to pursue
efforts now "to reunify S.M.I. with mother,"
Appellant's Brief at 21, S.M.I.'s biological mother
advances two assignments of error. She argues first that the
"trial court's determination that the
appellant's parental rights should be terminated is not
supported by clear and convincing evidence," and second
that the "trial court's determination that the
agency made reasonable efforts to unify this family is not
supported by clear and convincing evidence."
Appellant's Brief at 5.
8} We begin our review by acknowledging the enormous
gravity of the parent-child issues implicated here and in any
permanent custody matter. The Supreme Court of Ohio has
underscored that the right to raise one's children
"is a fundamental right." In re C.F., 113
Ohio St.3d 73,2007-Ohio-1104, ¶ 28, citing
Troxel v. Granville, 530 U.S. 57, 66 (2000)
(citation omitted); see also, e.g., In re Hayes, 79
Ohio St.3d 46, 48 (1997) (" 'essential' and
'basic' civil right"), quoting In re
Murray,52 Ohio St.3d 155, 157 (1990). "Because an
award of permanent custody is the most drastic disposition
available under the law, it is an alternative of last resort
and is only justified when it is ...