2023 Ohio 671
Ohio Ct. App.2023Background
- July 2018: Ashtabula County Children Services Board (ACCSB) removed two minor children after parents Samuel Marshall Jr. and Rebecca Henery were found intoxicated; children adjudicated dependent August 28, 2018.
- Case plan required sobriety, substance‑abuse and mental‑health treatment, parenting classes, stable housing and employment; parents admitted chronic alcohol use and had ongoing instability.
- Children were placed briefly with Henery (March–Aug 2019) but ACCSB retained legal temporary custody and later removed them due to safety concerns at parents’ Main Avenue property.
- ACCSB filed for permanent custody June 4, 2020; evidentiary hearing held April 14, 2021 (parents presented little/no evidence). Magistrate recommended granting permanent custody; trial court adopted recommendation and granted ACCSB permanent custody.
- Marshall appealed, arguing (1) lack of clear and convincing evidence to grant permanent custody and (2) ACCSB failed to make reasonable reunification efforts.
Issues
| Issue | Plaintiff's Argument (Marshall) | Defendant's Argument (ACCSB) | Held |
|---|---|---|---|
| Whether clear and convincing evidence supported awarding permanent custody | The record showed parental efforts (especially Henery) and bonding with children; evidence did not prove parents unfit or that custody to ACCSB was necessary | Children were in ACCSB custody 12 of 22 months, parents remained noncompliant or only belatedly compliant, continued instability (housing, substance use, employment), children thriving in foster care | Court held clear and convincing evidence supported permanent custody to ACCSB (R.C. 2151.414(B)(1)(d) prong met and best interests prong satisfied) |
| Whether ACCSB made reasonable reunification efforts before seeking permanent custody | ACCSB failed to increase or liberalize visitation and thus did not show reasonable reunification efforts | ACCSB adopted case plans, provided caseworkers, supervised (and virtual) visitation, temporarily placed children with mother, and efforts were frustrated by parents’ behavior and noncompliance | Court held ACCSB made reasonable reunification efforts; lack of unsupervised visitation resulted from parents’ conduct, not agency inaction |
Key Cases Cited
- In re Hayes, 79 Ohio St.3d 46 (1997) (parental right to raise child is fundamental; termination requires procedural protections)
- In re Smith, 77 Ohio App.3d 1 (1991) (permanent termination is like the death penalty in family law context)
- In re Cunningham, 59 Ohio St.2d 100 (1979) (welfare of the child is the controlling principle)
- In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985) (appellate review must determine whether trial court had sufficient evidence to meet clear and convincing standard)
- In re C.W., 104 Ohio St.3d 163 (2004) (time between motion filing and hearing does not count toward 12‑month custody period; defines when temporary custody begins for R.C. 2151.414(B)(1)(d))
- In re C.F., 113 Ohio St.3d 73 (2007) (R.C. 2151.419(A)(1) does not apply at permanent‑custody hearing but agency must still show reasonable reunification efforts during proceedings)