2022 Ohio 1347
Ohio Ct. App.2022Background
- Newborn K.P. was removed at birth (June 2019) after cord blood tested positive for multiple controlled substances; emergency temporary custody granted to Preble County JFS (the Agency).
- Mother completed inpatient and outpatient treatment programs but had relapses (including an OVI and positive drug tests), obtained a medical marijuana card without notifying the Agency, and had inconsistent attendance in later treatment.
- K.P. entered foster placement in February 2020 and remained with the same foster family; visits progressed to a 30‑day home trial in April 2021 but the trial ended early after reports Mother smoked marijuana in K.P.’s presence and other caregiving concerns.
- Mother incurred new drug charges after K.P.’s removal and was incarcerated in Indiana during the permanent‑custody hearing (release set for January 2022); proposed kin/third‑party placements (roommate, family friend, maternal grandmother) fell through or were not pursued.
- Agency moved for permanent custody in May 2021; juvenile court found (1) K.P. had been in temporary custody for at least 12 of 22 consecutive months and (2) reunification was not possible within a reasonable time, and awarded permanent custody to the Agency on October 21, 2021.
Issues
| Issue | Mother’s Argument | Agency’s Argument | Held |
|---|---|---|---|
| Whether applying the “12 of 22” rule (R.C. 2151.414(B)(1)(d)) during COVID‑19 denied Mother due process | COVID‑19 restrictions curtailed services, remote treatment/virtual hearings and limited visitation, so strict 12‑of‑22 application was unfair and denied due process | Pandemic did not prevent Mother from accessing services or abstaining; many delays resulted from Mother’s choices (relapse, spotty attendance, transportation, incarceration) | Court upheld 12‑of‑22 finding as supported by the record; even if 12‑of‑22 were inapplicable, finding that child could not be placed with Mother within a reasonable time independently supports permanent custody |
| Whether the juvenile court erred in finding permanent custody was in child’s best interest (R.C. 2151.414(D)(1) factors, including child’s wishes) | Mother: substantial case‑plan progress, bond with Mother, proposed alternate placements, home‑trial experience and remedial steps show reunification possible; court failed to properly weigh/consider statutory factors | Child is bonded to foster family, foster parents meet needs and want to adopt; Mother’s relapses, positive tests, inconsistent visitation, lack of stable housing/transportation and incarceration make reunification unrealistic soon | Court found clear and convincing evidence permanent custody is in child’s best interest; declined to sua sponte review unraised complaint about child’s wishes given child’s age and procedural posture; dissent would remand for explicit consideration of all factors |
Key Cases Cited
- Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (state must prove termination of parental rights by clear and convincing evidence)
- Eastley v. Volkman, 132 Ohio St.3d 328 (Ohio 2012) (standard for manifest‑weight review and weighing credibility)
- In re Schaefer, 111 Ohio St.3d 498 (Ohio 2006) (no single best‑interest factor is dispositive; court may weigh factors in context)
- In re C.F., 113 Ohio St.3d 73 (Ohio 2007) (trial court must consider all relevant best‑interest factors)
- State v. Moore, 154 Ohio St.3d 94 (Ohio 2018) (appellate discretion to review unassigned errors and requirement to give notice/opportunity to brief when doing so)
- In re Hayes, 79 Ohio St.3d 46 (Ohio 1997) (recognizing the gravity of permanently terminating parental rights)