2017 Ohio 7293
Ohio Ct. App.2017Background
- M.B., born May 3, 2011, came into Ashtabula County Children Services Board (ACCSB) custody after mother Rachel Smithers was arrested for child endangering and drugs in Sept. 2013; child removed on emergency order and later adjudicated neglected.
- Mother was incarcerated from Sept. 2013 to Nov. 2015 and had no direct contact or visitation with M.B. after ACCSB obtained custody; the child remained in the same foster home for ~2.5 years.
- ACCSB filed an initial (premature) motion for permanent custody in Sept. 2014, then filed an amended permanent-custody motion on June 9, 2015 after the statutory window had passed.
- At the March 2016 termination hearing, testimony showed mother completed many rehabilitative programs, obtained housing and employment, and maintained sobriety, but had not reestablished a relationship with M.B.; foster parents were stable and intended to adopt.
- The magistrate found the child had been in agency custody for 12 of 22 consecutive months, that placement with mother could not be achieved within a reasonable time (and also found abandonment), and that awarding ACCSB permanent custody was in the child’s best interest; the trial court adopted this and appellant appealed.
Issues
| Issue | Smithers' Argument | ACCSB's Argument | Held |
|---|---|---|---|
| Whether ACCSB timely sought permanent custody under R.C. 2151.414(B)(1)(d) | The Sept. 2014 motion was premature (filed before the 1-year statutory window), denying procedural protections | The premature filing was harmless because ACCSB filed an amended motion on June 9, 2015 within the statutory period | The amended June 2015 motion cured any defect; timing objection fails |
| Whether mother’s lack of contact equals abandonment under R.C. 2151.011(C) | Mother’s absence and failure to visit were largely due to incarceration and parole restrictions beyond her control | Mother had no actual contact with M.B. for over 90 days and made insufficient efforts post-release to establish contact | Court found abandonment was supported by clear and convincing evidence (but relied primarily on 12-of-22 months ground) |
| Whether the 12-of-22-months statutory ground is satisfied | Mother argued her incarceration and subsequent restrictions made meaningful contact impossible and that she rehabilitated, so termination was premature | Child had been in ACCSB temporary custody for more than 12 of 22 consecutive months at the time of the amended motion | Court found the 12-of-22 months factor satisfied, triggering best-interest analysis |
| Whether awarding permanent custody was against the manifest weight of the evidence (best-interest) | Mother emphasized rehabilitation, sobriety, stability, and that severance was premature given limited post-release time to reestablish bond | ACCSB emphasized child’s established, secure attachment to foster family, child’s need for legally secure permanent placement, and mother’s prolonged lack of contact | Court held clear-and-convincing evidence supported that granting ACCSB permanent custody served the child’s best interest; judgment affirmed |
Key Cases Cited
- In re Murray, 52 Ohio St.3d 155 (parents have a paramount right to custody but it is not absolute)
- In re D.A., 113 Ohio St.3d 88 (parental interest subordinate to child welfare in termination context)
- In re Cunningham, 59 Ohio St.2d 100 (best interests/welfare of child controls dispositional phase)
- Miller v. Miller, 37 Ohio St.3d 71 (parental rights subordinate to child’s best interest)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (manifest-weight standard: judgments supported by competent, credible evidence will not be reversed)
- In re Holcomb, 18 Ohio St.3d 361 (definition of clear and convincing evidence standard)