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In re S.M.I.

Court of Appeals of Ohio, Tenth District

June 13, 2019

In the Matter of: S.M.I., (H.H., Appellant).

          APPEAL 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.

          Robert J. McClaren, for appellee Franklin County Children Services.


          NELSON, J.

         {¶ 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 custody case:

[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 ...

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