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In re R.M.

Court of Appeals of Ohio, Seventh District, Harrison

December 11, 2019

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

         JUDGMENT: Affirmed.

          David S. Trouten Jr., Asst. Public Defender, for Appellant

          T. Owen Beetham, Prosecuting Attorney, Atty. Lauren Knight, Assistant Prosecuting Attorney, for Appellee.

          BEFORE: Carol Ann Robb, Cheryl L. Waite, David A. D'Apolito, Judges.

          OPINION AND JUDGMENT ENTRY

          ROBB, J.

         {¶1} 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.

         {¶2} For the reasons expressed below, Mother's arguments are meritless. The juvenile court's grant of permanent custody to the Agency is affirmed.

         Statement of Case

         {¶3} 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 10, 2017.

         {¶4} 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.

         {¶5} At the Shelter Care Hearing, Mother and Father, J.B., stipulated to R.M. being placed into shelter care.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} The case plan was again filed with the court on May 14, 2018.

         {¶13} 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.

         {¶14} 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 six-month extension."

         {¶15} Following the hearing, the trial court granted the six-month extension. 10/22/18 J.E.

         {¶16} In January 2019, the Agency moved for the appointment of a Guardian Ad Litem (GAL). The motion was granted. 1/10/19 J.E.

         {¶17} 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.

         {¶18} 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.

         {¶19} 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.

         {¶20} Mother timely appealed. Pursuant to App.R. 11.2(C) this case is expedited.

         First Assignment of Error

         "The 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."

         {¶21} 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 another state.

R.C. 2151.414(B)(1)

         {¶22} 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

         {¶23} 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, ¶ 56.

         {¶24} 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 ...


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