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In re Ar.S.

Court of Appeals of Ohio, Third District, Marion

December 30, 2019

IN RE: Ar.S., [SARAH SMITH - APPELLANT]

          Appeal from Marion County Common Pleas Court Family Division Trial Court No. 2016 AB 0008

          Todd A. Workman for Appellant

          Justin Kahle for Appellee

          OPINION

          WILLAMOWSKI, J.

         {¶1} Appellant Sarah Smith ("Sarah") brings this appeal from the judgment of the Court of Common Pleas of Marion County, Family Division terminating her parental rights and granting permanent custody to Appellee Marion County Children Services ("the Agency"). On appeal, Sarah claims that the trial court erred 1) in finding that the Agency made reasonable efforts to reunify the family; 2) in finding that the child could not be returned to the home in a timely manner; and 3) in finding that the termination of the parental rights was in the best interest of the child. For the reasons set forth below, the judgment is affirmed.

         Procedural Background

         {¶2} This case arises from a complaint filed on January 12, 2016, alleging that Ar.S. and her siblings in the home were dependent children as drug trafficking and drug use was allegedly occurring in the home.[1] Doc. 1. Ar.S. was listed as being born in July of 2004, to Sarah and Shane Smith ("Shane"), so was only 11 years old at the time of the complaint. Id. The complaint requested that protective supervision be granted to the Agency and that Ar.S. would remain in the home. Doc. 1 and 3. On February 10, 2016, the trial court appointed Mary Kay Crowder ("Crowder") as the guardian ad litem for Ar.S. Doc. 11. An adjudication hearing was held before a magistrate on March 11, 2016, at which the magistrate found Ar.S. to be a dependent child. Doc. 18. The trial court subsequently reviewed the evidence and adopted the decision of the magistrate. Doc. 19. The magistrate held a hearing of disposition on April 8, 2016, and ordered that Ar.S., would remain in the custody of her parents under the protective supervision of the Agency. Doc. 20. The trial court adopted this disposition on May 2, 2016. Doc. 21.

         {¶3} On September 9, 2016, the Agency filed a motion for an emergency removal of Ar.S. and three of her siblings[2] from the home. Doc. 25. The basis for the removal was the continued use of drugs by Sarah and Shane; alleged instances of domestic violence between Sarah and Shane; eviction from the family home; the children failing to attend school; and failure to follow the safety plan. Id. The trial court granted emergency custody to the Agency. Doc. 26. An amended case plan was submitted by the Agency on September 15, 2016. Doc. 28. Per the case plan, Ar.S. was placed in a certified foster home on September 9, 2016. Id. As part of the case plan, Sarah and Shane were required to complete assessments for addiction and mental health issues within 30 days, and follow the recommendations. Id. Sarah and Shane were also required to engage in services for domestic violence issues within 30 days. Id. Both were required to submit to random drug screens. Id. Although Ar.S. was originally placed with her two younger siblings, in June 2017, the two younger siblings were moved to other foster homes. Doc. 42 and 43. This left Ar.S. as the only child in the foster home. Doc. 45. Ar.S. also began counseling to help her deal with the trauma in her life. Id.

         {¶4} On June 11, 2018, the Agency filed a motion for permanent custody of Ar.S. and her siblings. Doc. 79. The motion alleged that Sarah and Shane had 1) failed to follow through with the drug treatment recommendations; 2) continued to use drugs in the presence of the children; 3) failed to comply with requested drug screens at times; 4) failed to maintain appropriate legal income; 5) failed to maintain appropriate housing; 6) failed to implement parenting skills taught to them; 7) failed to refrain from criminal activity; and 8) engaged in domestic violence. Id. Crowder filed her report to the court on June 25, 2018. Crowder noted that Ar.S. was "extremely bonded with her mother and siblings." Id. at 4. She noted that the foster parents indicated that they were willing to keep Ar.S. until she is 18, but they would not adopt her as they would lose the financial support from the state if they did so. Id. Crowder stated that Ar.S. was "very angry with her father and wants nothing to do with him due to his drug use and domestic violence against Sarah, [Ar.S.] and her siblings." Id. Based upon everything she had reviewed, Crowder stated that she did not believe Sarah would be able to care for the children in the near future. Id. at 8-9. Crowder concluded that although she hoped the siblings could maintain contact with each other, it was her opinion that it would be in Ar.S.'s best interest to grant the Agency's motion for permanent custody. Id. at 9. Crowder filed a supplemental report on November 27, 2018. Doc. 138. In that report, Crowder stated that Ar.S. indicated that she was "extremely upset" at the thought that she would be permanently separated from her younger siblings. Id. at 5. Ar.S. also indicated that her preference would be to live with her maternal grandmother, but if she cannot live with her, she would like to remain with her foster parents, whom she considers to be her "friends". Id. Crowder did not change her recommendation. Id. at 12.

         {¶5} Hearings on the motion for permanent custody were held on September 18 and October 31, 2018. Doc. 104. On December 27, 2018, the trial court issued its judgment terminating the parental rights of Sarah and Shane. Id. In its judgment, the trial court made the following findings.

The evidence shows that the children have been placed in various foster homes. Each child has experienced significant trauma and show signs of post-traumatic stress disorder. The children are at various levels of treatment for their trauma and post-traumatic stress disorder.
[Ar.S.], age 14, is the eldest of the four children. She has been and continues to be in counseling to address her depression and anxiety. [Ar.S.], being the oldest of the four children, demonstrates the need to protect the other children. Since she has been in foster care her academics have improved.

Id. at 2. The court found that Ar.S. had been in the temporary custody of the Agency for 12 out of the prior 22 months. [3] Id. at 3. The court also found that the parents had failed to remedy the conditions which required Ar.S. to be removed from the home and that the Agency had made reasonable efforts to reunify the family. Id. at 4. The trial court then granted the Agency permanent custody of Ar.S. and her siblings. Id. at 4-5. Sarah filed a timely notice of appeal from this judgment.[4] Doc. 146. On appeal, she raises the following three assignments of error.

First Assignment of Error
The trial court erred in finding that the Agency made reasonable efforts to reunify the family as required under Ohio Law.
Second Assignment of Error
The trial court erred when it determined that the children could not be returned in a timely manner.
Third Assignment of Error
The decision of the trial court is not in the best interest of the child and the determination was against the manifest weight and sufficiency of the evidence.

         In the interest of clarity, the assignments of error will be discussed out of order.

         Legal Standard

         {¶6} All of the assignments of error allege that the trial court erred in terminating the parental rights of Sarah. The right to parent one's own child is a basic and essential civil right. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). "Parents have a 'fundamental liberty interest' in the care, custody, and management of their children." In re Leveck, 3d Dist. No. 5-02-52, 5-02-53, 5- 02-54, 2003-Ohio-1269, ¶ 6. These rights may be terminated, however, under appropriate circumstances and when all due process safeguards have been followed. Id. When considering a motion to terminate ...


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