In re A.M.
Judith M. Kowalski, 333 Babbitt Road, Suite 323, Euclid, OH 44123 (For Appellant, Samuel Marshall, Jr.).
Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, LPA, 34 South Chestnut Street, Suite 100, Jefferson, OH 44047 (Guardian ad Litem).
MARY JANE TRAPP, J.
{¶1} In this consolidated appeal, appellant, Samuel Marshall, Jr. (“Mr. Marshall“), appeals the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, overruling his objections to the magistrate‘s decision and granting permanent custody of his two minor children to appellee, Ashtabula County Children Services Board (“ACCSB“).
{¶3} After a thorough review of the record and pertinent law, we find that clear and convincing evidence supported the trial court granting permanent custody of the children to ACCSB and its determination that ACCSB made reasonable reunification efforts.
{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division.
Substantive and Procedural History
{¶5} This appeal involves the two minor children of Mr. Marshall and Rebecca Henery (“Ms. Henery“), who were born, respectively, in 2013 and 2016.
{¶6} This matter began on July 27, 2018, when ACCSB received a hotline call at 3 a.m. indicating that the children were present at the home of a babysitter where the police had been called. Ms. Henery reported that she was intoxicated and unable to pick up the children. Mr. Marshall arrived by taxi but appeared to be intoxicated. ACCSB took emergency temporary custody of the children at the scene. The trial court filed an ex parte order granting emergency temporary custody of the children to ACCSB.
{¶7} On July 30, 2018, ACCSB filed a verified complaint for temporary custody, alleging neglect and dependency. The trial court held a shelter care hearing. Mr. Marshall and Ms. Henery appeared and stipulated to probable cause. The trial court continued
{¶8} On August 15, 2018, ACCSB filed a case plan. The case plan stated that Mr. Marshall and Ms. Henery admitted to chronic alcohol use. There were concerns that it interfered with their parenting and that there was other substance abuse. The case plan required Mr. Marshall and Ms. Henery to maintain sobriety; to complete an age-appropriate parenting class; to complete drug and alcohol assessments, follow any and all recommendations, and comply with random screens; to complete mental health assessments and follow any and all recommendations; to obtain employment and provide proof of income; and to obtain adequate housing and provide proof of residency. Mr. Marshall was instructed to focus on “intimate partner violence.”
{¶9} On August 28, 2018, the trial court held an adjudication hearing. Ms. Henery appeared with counsel. Mr. Marshall did not appear but was represented by counsel. The trial court adjudicated the children as dependent and dismissed the allegation of neglect.
{¶10} On September 25, 2018, the trial court held a disposition hearing. Mr. Marshall and Ms. Henery appeared and were represented by counsel. The trial court adopted the case plan and granted temporary custody of the children to ACCSB.
{¶11} On October 11, 2018, Ms. Henery, through counsel, filed a motion requesting the return of the children and for increased visitation. On January 24, 2019, the trial court held a semi-annual review hearing. Ms. Henery appeared with counsel. Mr. Marshall did not appear but was represented by counsel. The GAL reported that Ms. Henery had made progress on her case plan, that she obtained separate housing from
{¶12} Ms. Henery moved into a house on Humphrey Avenue in Ashtabula. In March 2019, ACCSB placed the children in her care. According to ACCSB, however, the house presented a safety hazard due to electrical cords from an outside generator and the presence of multiple men associated with criminal activity.
{¶13} On July 18, 2019, ACCSB filed a motion to extend temporary custody. On July 29, 2019, the trial court held a hearing on this motion and an annual review. Mr. Marshall and Ms. Henery were present and represented by counsel. ACCSB reported that the children were currently residing with Ms. Henery on a trial basis but that it maintained temporary custody. Ms. Henery agreed with ACCSB‘s request to extend temporary custody for six months so that she could work on her case plan. Mr. Marshall also agreed to the extension, indicating that although he was not complying with his case plan, he was supportive of Ms. Henery‘s efforts to regain custody. Upon Ms. Henery‘s request, the trial court vacated its prior order prohibiting Mr. Marshall from being present during her visitation time with the children.
{¶14} After repeated requests from ACCSB, Ms. Henery agreed to move into an apartment at Beatitude House in Ashtabula and was put on a waiting list. In August 2019, Ms. Henery and the children stayed with Mr. Marshall at the Main Avenue store for a few
{¶15} On October 29, 2019, the trial court held a review hearing. Mr. Marshall and Ms. Henery did not appear but were represented by counsel. The GAL reported that Ms. Henery had completed a parenting class but had been inconsistent with her mental health treatment. Courtney Santiago (“Ms. Santiago“), the parents’ ACCSB caseworker, reported that Mr. Marshall had not completed the parenting class or substance abuse treatment requirements and that he and Ms. Henery appeared to be residing in the Main Avenue store. All prior orders were maintained, and the children remained in the temporary custody of ACCSB.
{¶16} On January 9, 2020, ACCSB filed a second motion to extend temporary custody. On February 12, 2020, the trial court held a hearing on the motion. Mr. Marshall did not appear but was represented by counsel. Ms. Henery appeared late, after the presentation of evidence. Ms. Santiago testified that Ms. Henery was officially residing at Beatitude House; however, on several occasions when Ms. Santiago attempted to visit, Ms. Henery was not present. On multiple occasions, Ms. Santiago observed Ms. Henery‘s vehicle at the Main Avenue store. In fact, the parents were involved in an argument in front of that location at 6 a.m. that morning. Ms. Henery had also missed multiple appointments for her mental health treatment. Ms. Santiago further testified that Mr. Marshall had attended one recent counseling appointment, was employed at a factory, and was residing in the Main Avenue store. The trial court extended temporary custody for a six-month period.
{¶18} On April 21, 2020, one of Ms. Henery‘s neighbors at Beatitude House called the police. According to the police report, Mr. Marshall discovered that Ms. Henery had male company, opened her window, and began shoving items off the ledge while yelling. On another occasion, Beatitude House prohibited a different male friend from visiting Ms. Henery because of his alleged criminal activity.
{¶19} On June 4, 2020, ACCSB filed a motion to modify its temporary custody to permanent custody.
{¶20} In August 2020, at the GAL‘s request, the trial court appointed counsel for the children based on the possibility that the GAL‘s recommendation may conflict with the children‘s wishes. The GAL subsequently filed two reports recommending that the trial court grant permanent custody to ACCSB.
{¶21} Following three continuances (two requested by Ms. Henery and one requested by ACCSB), the magistrate held an evidentiary hearing on April 14, 2021. ACCSB presented testimony from Captain Stephen Chase (“Capt. Chase“) from the Ashtabula Fire Department (over the parents’ objections); Attorney Jane Hawn Jackson, who previously served as the GAL; Ms. Henery; and Ms. Santiago. Ms. Henery testified
{¶22} Capt. Chase testified that the Main Avenue property was previously used by an insurance business. In 2018, he discovered it was filled with combustible materials, debris, trash, and extension cords. In 2019, he found evidence that the property was being used as a residence and took steps to have it ordered vacated. Despite these efforts, he observed Mr. Marshall and Ms. Henery on the property on multiple occasions. He informed Mr. Marshall during several conversations that he could not be there. In 2020, he again observed residential evidence at the property and took steps to have the electricity shut off. In 2021, the property was badly damaged in a fire, which the department determined had been intentionally set.
{¶23} Ms. Santiago testified that prior to June 2020 when the ACCSB filed its motion for permanent custody, Ms. Henery was not compliant with her case plan. Although Ms. Henery was officially residing at Beatitude House, Ms. Santiago only found her present at the residence during three out of ten visits. In addition, Ms. Henery was charged with felony burglary for the incident when she appeared unannounced at the foster family‘s home and was required to participate in mental health court. Ms. Henery also did not maintain steady employment or provide proof of income.
{¶24} After June 2020, Ms. Henery was compliant with her mental health and substance abuse treatment requirements and had obtained suitable housing; however, certain issues remained. For instance, Ms. Henery tested positive for amphetamines and methamphetamines. She refused to submit to a hair screen for the purpose of detecting
{¶25} Prior to June 2020, Mr. Marshall was not compliant with his case plan. He did not complete his parenting class or anger management class requirements; maintain steady employment; provide proof of income for the Main Avenue business; maintain suitable housing; or follow substance abuse treatment recommendations. After June 2020, Mr. Marshall moved into a new apartment but remained noncompliant with his other requirements. He tested positive for amphetamines and methamphetamines at the same time as Ms. Henery and also refused to submit to a hair screen.
{¶26} Ms. Santiago testified that prior to the pandemic, Mr. Marshall and Ms. Henery had supervised in-person visits with the children for one hour each week. Ms. Henery missed one of those visits. During the pandemic, the visits were virtual, and Mr. Marshall and Ms. Henery missed approximately half of them. Both interacted inappropriately at times during their visits by discussing the custody case.
{¶27} The children‘s foster mother stated that she had served in that capacity since August 27, 2019. Since that time, the children have experienced a stable and secure environment. The children do well in school, have many friends, and enjoy playing several sports. She has enrolled the children in counseling services. She stated that it is heartbreaking when Mr. Marshall and Ms. Henery do not show up for confirmed visits with the children. She indicated that she would like to provide a permanent home for the children and to provide ongoing contact with their biological parents and other relatives.
{¶29} On July 8, 2021, the magistrate filed a decision granting ACCSB‘s motion for permanent custody. It found, by clear and convincing evidence, that the children had been in ACCSB‘s temporary custody for a minimum of 12 out of the past 22 consecutive months; that ACCSB made reasonable efforts to prevent the removal of the children from their home, to eliminate the continued removal of the children from their home, or to make it possible for the children to return safely home; and that granting ACCSB‘s motion for permanent custody would serve the children‘s best interests.
{¶30} On July 16, 2021, the trial court filed a judgment entry approving and adopting the magistrate‘s decision and granting ACCSB‘s motion for permanent custody. Mr. Marshall and Ms. Henery both filed objections to the magistrate‘s decision, and Ms. Henery later filed supplemental objections following the filing of the hearing transcript.
{¶31} On October 14, 2022, the trial court filed a judgment entry overruling the parties’ objections to the magistrate‘s decision and granting permanent custody of the children to ACCSB.
{¶32} Mr. Marshall filed two notices of appeal, which this court sua sponte consolidated. He raises the following two assignments of error:
{¶34} “[2.] The Ashtabula County Children‘s Services Board failed to show that reasonable reunification efforts were made prior to seeking permanent custody of the subject children.”1
Standard of Review
{¶35} It is well established that a parent‘s right to raise a child is an essential and basic civil right. In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). The permanent termination of parental rights has been described as ““the family law equivalent of the death penalty in a criminal case.“” Id., quoting In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Based upon these principles, the Supreme Court of Ohio has determined that a parent must be afforded every procedural and substantive protection the law allows. Id.
{¶36} While the rights of a parent to his or her child are fundamental, they are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed. In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). Although the termination of the rights of a natural parent should occur as a last resort, termination is expressly authorized when necessary for the welfare of the child. In re L.M.R., 11th Dist. Lake No. 2016-L-096, 2017-Ohio-158, ¶ 33.
Permanent Custody
{¶38} In his first assignment of error, Mr. Marshall contends that the trial court erred in finding that clear and convincing evidence supported granting permanent custody of the children to ACCSB.
{¶39} The trial court must apply a two-pronged analysis when ruling on a motion for permanent custody. In re Krems at ¶ 33. The trial court may grant permanent custody of a child to the movant if the court determines at the hearing, by clear and convincing evidence, that one of the factors enumerated in
{¶40} Under the first prong, the trial court determined that the children had “been in the temporary custody of one or more public children services agencies * * * for twelve or more months of a consecutive twenty-two-month period.”
{¶41} We note that Mr. Marshall did not raise this argument in his objections to the magistrate‘s decision. “An objection to a magistrate‘s decision shall be specific and state with particularity all grounds for objection.”
{¶42} We find no plain error in the trial court‘s determination. “‘Temporary custody’ means legal custody of a child who is removed from the child‘s home, which custody may be terminated at any time at the discretion of the court * * *.” (Emphasis added.)
{¶43} Here, ACCSB obtained temporary custody of the children when they were adjudicated dependent on August 28, 2018. ACCSB placed the children in Ms. Henery‘s care between March and August 2019. However, the trial court did not grant any legal status to Ms. Henery with respect to the children‘s custody. Therefore, for purposes of
{¶44} In addition, courts have explained that ”
{¶45} Mr. Marshall next contends that the evidence presented at the hearing “tended to show” that Ms. Henery was “working hard throughout the pendency of the matter to complete her case plan.” (Emphasis added.)2
{¶47} Further, “the dispositive issue is not whether a parent has complied with the case plan, but whether the parent has substantially remedied the conditions that led to the children‘s removal.” In re R.A.D., 1st Dist. Hamilton Nos. C-200325 et al., 2021-Ohio-372, ¶ 21. “A parent‘s compliance with the case plan does not preclude a trial court from awarding custody to a children-services agency, as long as it is in the child‘s best interest.” Thus, Ms. Henery‘s substantial compliance with the case plan after June 2020, by itself, was not dispositive.
{¶49} Since Mr. Marshall failed to raise this evidentiary issue in his objections to the magistrate‘s decision, he has waived all but plain error. See
{¶50} Capt. Chase testified about the conditions of the Main Avenue property during the time period in which, by their own admissions, Mr. Marshall resided there, Mr. Marshall and Ms. Henery operated a business there, and Ms. Henery and the children lived there for a few days. Thus, Capt. Chase‘s testimony was relevant, as it provided context for the parents’ admitted activities.
{¶51} In addition, Evid.R. 403(A) references evidence that is unfairly prejudicial. Unfavorable evidence is not equivalent to unfairly prejudicial evidence. State v. Tate, 11th Dist. Lake No. 2010-L-145, 2011-Ohio-6848, ¶ 49. Rather, evidence may be considered unfairly prejudicial when it tends to “arouse a jury‘s emotions,” “evoke * * * a sense of horror,” or “rouses an instinct to punish.” Id. at ¶ 50. In a bench trial, the trial judge is presumed to possess the ability to remain objective when examining the
{¶52} Finally, Mr. Marshall challenges the trial court‘s determination under the second prong of the required analysis, i.e., that it was in the children‘s best interest to grant permanent custody to ACCSB. In determining the best interest of a child, the trial court shall consider all relevant factors, including, but not limited to, those set forth in
{¶53}
{¶54} Mr. Marshall contends that the evidence showed there was a positive bond between Ms. Henery and the children and that his interaction with the children was appropriate.
{¶55} The magistrate expressly found that the children are bonded to their parents and that the parents have participated in supervised visits. However, Mr. Marshall fails to acknowledge the remainder of the magistrate‘s findings, including that the children are thriving in the care of their foster mother where all of their needs are being met; the children are bonded to their foster mother; the parents’ visits have not progressed to unsupervised visits due to their inappropriate behavior and case plan noncompliance; and the parents’ virtual visits during the pandemic have been highly inconsistent and, at times, inappropriate. The magistrate‘s findings are supported by substantial competent, credible evidence in the record.
{¶57} Mr. Marshall states that the children wished to be returned to their parents and that the magistrate found the children were too young to express their wishes despite the fact that they had been appointed separate counsel. However, Mr. Marshall does not accurately recite the magistrate‘s findings. The magistrate found that the “children are too young to express their wishes independently; the children‘s wishes were expressed through the report, recommendation, and testimony of the Guardian ad Litem, and arguments of counsel.” Thus, the magistrate properly considered the children‘s wishes.
{¶58}
{¶59} Mr. Marshall again notes that the children were placed in Ms. Henery‘s care for a period of time in 2019 and suggests ACCSB did not have temporary custody for a consecutive 12-month period. As explained above, however, Mr. Marshall‘s reading of the statute is incorrect. Further, Mr. Marshall fails to acknowledge the children‘s full custodial history, including that ACCSB removed the children from Ms. Henery‘s care when it discovered she had stayed with them at the Main Avenue property where documented safety hazards existed.
{¶61} Mr. Marshall points to the evidence at trial indicating that Ms. Henery began substantially complying with her case plan after June 2020 and that he had obtained housing and employment. As explained above, however, the dispositive issue is whether the parents have substantially remedied the conditions that led to the children‘s removal. Mr. Marshall fails to acknowledge the magistrate‘s finding that neither parent had remedied the concerns that were the basis for the children‘s removal. Specifically, both parents demonstrated ongoing instability in their lives with respect to employment and income, safe housing, substance abuse, and their relationship. In addition, for over two years, neither parent was able to interact with the minor children in an unsupervised fashion. The magistrate‘s findings are supported by substantial competent, credible evidence in the record.
{¶62} Finally,
{¶63} In sum, we conclude that clear and convincing evidence supported the trial court‘s granting permanent custody to ACCSB.
{¶64} Mr. Marshall‘s first assignment of error is without merit.
{¶65} In his second assignment of error, Mr. Marshall contends that ACCSB failed to show that it made reasonable reunification efforts prior to seeking permanent custody of the children.
{¶66} Mr. Marshall cites
{¶67} “Except as provided in division (A)(2) of this section, at any hearing held pursuant to section
{¶68} The Supreme Court of Ohio has held that ”
{¶69} Mr. Marshall argues that the fact ACCSB did not increase visitation or provide unsupervised visitation demonstrates it did not make reasonable reunification efforts.
{¶70} We disagree with Mr. Marshall‘s assertion. In determining whether the agency made reasonable efforts, the issue is not whether the agency could have done more, but whether it did enough to satisfy the reasonableness standard. In re Elliott, 11th Dist. Ashtabula No. 2005-A-0018, 2006-Ohio-738, ¶ 16. The record shows that ACCSB made numerous reunification efforts, including adopting case plans for both parents; providing a caseworker; providing regular supervised visitation with the children; and even temporarily placing the children in Ms. Henery‘s care. During the pandemic, ACCSB continued to provide regular virtual visitation. The fact that visitation did not increase or become unsupervised was the result of the parents’ own actions and behavior and not ACCSB‘s lack of effort.
{¶71} In sum, we conclude that clear and convincing evidence supported the trial court‘s determination that ACCSB made reasonable reunification efforts.
{¶72} Mr. Marshall‘s second assignment of error is without merit.
JOHN J. EKLUND, P.J.,
MATT LYNCH, J.,
concur.