Court of Appeals of Ohio, Seventh District, Harrison
IN THE MATTER OF: R.M., A NEGLECTED AND DEPENDENT CHILD.
Juvenile Appeal from the Court of Common Pleas, Juvenile
Division of Harrison County, Ohio Case No. 20173017
S. Trouten Jr., Asst. Public Defender, for Appellant
Owen Beetham, Prosecuting Attorney, Atty. Lauren Knight,
Assistant Prosecuting Attorney, for Appellee.
BEFORE: Carol Ann Robb, Cheryl L. Waite, David A.
OPINION AND JUDGMENT ENTRY
Appellant S.D. (Mother) appeals the decision of Harrison
County Common Pleas Court, Juvenile Division, granting
permanent custody of her biological child, R.M., to Harrison
County Department of Job and Family Services (the Agency).
Four issues are raised in this appeal. First, Mother argues
the trial court's decision granting permanent custody to
the Agency was against the manifest weight of the evidence.
Next, she argues, the Agency failed to prove that there were
reasonable efforts at reunification. Third, she contends she
was denied effective assistance of counsel. Lastly, Mother
asserts the trial court did not remain a neutral fact finder
during the proceedings.
For the reasons expressed below, Mother's arguments are
meritless. The juvenile court's grant of permanent
custody to the Agency is affirmed.
R.M. was born May 18, 2016. She lived with Mother and the
maternal grandma for almost the first year of her life.
During that time period, there were allegations Mother abused
grandma. Eventually grandma admitted Mother abused her, and
Mother was arrested and charged with domestic violence on May
That same day, the child was removed from the home and the
state filed a complaint for Neglect, Abuse, and Dependency
with a request for a Shelter Care Hearing. The complaint
indicated that the agency received a report in September 2016
stating Mother was smoking marijuana and leaving R.M. for
long periods of time with grandma. Grandma was disabled,
wheelchair bound, and alleged to be physically incapable of
caring for R.M; grandma only had use of one arm due to
multiple strokes. A case plan was created for Mother to
become clean, obtain counseling, and arrange appropriate
child care while at work. However, in October 2016, the
Agency received another report that the child was being left
with grandma while Mother went out to smoke marijuana. It was
at this time that reports were also being received that
Mother was hitting grandma.
At the Shelter Care Hearing, Mother and Father, J.B.,
stipulated to R.M. being placed into shelter care.
The initial hearing was held on May 16, 2017. Mother was
appointed counsel. At the initial hearing, it was determined
that it was in the best interest of the child to remain in
the temporary custody of the agency. The adjudication was set
for May 30, 2017.
Prior to the adjudication, hair follicle testing on Mother
tested positive for cocaine, indicating Mother had been using
cocaine for a long period of time. 5/24/17 Comprehensive
Assessment Planning Model.
At the Adjudication Hearing, the abuse allegation was
dismissed. Mother and Father stipulated that R.M. was
neglected and dependent. 5/31/17 J.E. The case proceeded
immediately to disposition. 5/31/17 J.E.
A case plan was filed with the court on June 1, 2017. The
plan included both Mother and Father. Father's plan
required to him obtain his GED, get a job, secure housing,
attend parenting classes, attend visits with R.M., attend
drug counseling, submit to random drug screens, and attend
anger control management counseling sessions. Mother's
plan required her to see a doctor for her anxiety, attend
drug counseling, obtain her GED, attend parenting classes,
secure her own housing, and attend visits with R.M. The
ultimate goal of the case plans was for reunification.
The case plan was amended in January 2018 to remove Father
from the plan. 1/25/18 Amended Case Plan. Father had not
visited R.M. for six consecutive weeks and the only part of
the case plan he completed was obtaining a job. 1/25/18
Amended Case Plan.
The Agency requested an annual review in May 2018 and a
six-month extension to allow Mother time to progress on the
case plan. 5/7/18 Motion. Prior to the annual review, a
progress report was filed with the court. 5/9/18 Progress
Report. This report indicated that after testing negative on
all drug screens administered after June 2017, Mother tested
positive for amphetamine and methamphetamine use. The report
also indicated Mother had missed parenting meetings, had not
done the required drug and alcohol assessment, and had missed
3 visits with the child in a month and a half.
The case plan was again filed with the court on May 14, 2018.
Following the annual review, the juvenile court extended the
matter for six months and ordered the Agency's grant of
temporary custody continued. 5/24/18 J.E.
In October 2018, the Agency asked for a review and another
six-month extension. 10/3/18 Motion. Prior to the hearing,
another progress report was filed with the juvenile court.
10/17/18 Progress Report. This report indicated that on
August 17, 2018, Mother tested positive for amphetamines and
methamphetamines. At that point she was three to four months
pregnant. The report indicated she was attending individual
and drug counseling, she had attended parent group meetings,
was allowed to have home visits with R.M. for one hour
supervised and one hour unsupervised, she attended GED
classes and passed the Language Arts part of the test, and
she got a job. However, the report also noted that she had
been seen with people who have substantial criminal records
and are known drug users. At the end of the progress report
it stated, "The Agency asks that she continue counseling
and parenting classes. [Mother] needs to be drug free and
through counseling she may learn why she continues to use and
how to combat the need for drugs. The agency is requesting a
Following the hearing, the trial court granted the six-month
extension. 10/22/18 J.E.
In January 2019, the Agency moved for the appointment of a
Guardian Ad Litem (GAL). The motion was granted. 1/10/19 J.E.
Another case plan was filed in January 2019. This plan
indicated Mother had given birth to another child at 26 weeks
gestation. That child was in the hospital and Mother had not
visited the child. That child was placed in the custody of
the Agency. That case plan set forth the same requirements
the previous case plans had set forth for Mother to be
reunified with R.M. 1/15/19 Case Plan.
On April 8, 2019, the Agency moved for permanent custody. The
motion indicated that R.M. had been in the Agency's
custody for 12 of the past 22 months, Father had abandoned
the child, and Mother's drug use, failure to attend
mental health counseling or drug counseling, and failing to
find appropriate housing had prevented reunification. The
report of the GAL was filed with the court; and it likewise
indicated that permanent custody should be granted to the
Agency. 5/2/19 Report.
A hearing was held on the motion. Case workers from the
Agency and the GAL testified at the hearing. The trial court
granted the motion. 5/10/19 J.E. It found that reasonable
efforts were made to reunify the family, but Mother and/or
Father were unable or unwilling to follow through with the
case plan. The trial court found that it was in the best
interests of R.M. for her to be placed in the Agency's
permanent custody and to sever Mother and Father's
parental rights. 5/10/19 J.E.
Mother timely appealed. Pursuant to App.R. 11.2(C) this case
Assignment of Error
ruling was against the manifest weight of the evidence in
general, and particularly as to the state's failure to
prove by clear and convincing evidence that permanent custody
was in the best interest of the child."
Before a juvenile court can terminate parental rights and
grant permanent custody of a child to the Agency, the
two-prong test set forth in R.C. 2151.414 must be satisfied.
First, the juvenile court must find by clear and convincing
evidence that one of the following conditions set forth in
R.C. 2151.414(B)(1)(a) through (e) exists:
(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.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the
child who are able to take permanent custody.
(d) The child has 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 the child has 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 and, 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.
(e) The child or another child in the custody of the parent
or parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or
Second, the juvenile court must find by clear and convincing
evidence that granting permanent custody to the agency is in
the best interest of the child. In the Matter of
M.A., 7th Dist. Nos. 17 MO 0004 and 17 MO 0005,
2018-Ohio-209, ¶ 21. R.C. 2151.414(D)(1) states that in
determining whether permanent custody is in a child's
best interest, the court "shall consider all relevant
factors," including, but not limited to, the following:
(a) The interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster
caregivers and out-of-home providers, and any other person
who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the
child or through the child's guardian ad litem, with due
regard for the maturity of the child;
(c) The custodial history of the child * * *;
(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;
(e) Whether any of the factors in division (E)(7) to (11) of
this section apply in relation to the parents and child
No one factor is to be given greater weight than the others.
In re T.H., 8th Dist. Cuyahoga No. 100852,
2014-Ohio-2985, ¶ 23, citing In re Schaefer,
111 Ohio St.3d 498, 857 N.E.2d 532, 2006-Ohio-5513, ¶
There is no dispute in this case that R.M. had been in the
temporary custody of the Agency for more than 12 out of the
prior 22 months. R.M. was removed from the Mother's
custody when she was almost 1 year old and had been in the
continuous custody of the Agency through the permanent
custody hearing, which occurred when the child was almost
three years old. The child was removed from the home on ...