In re I.R.
Ryan Agee Law, and Ryan Agee, for appellant.
O P I N I O N
HENDRICKSON, J.
{¶ 1} Appellant, the mother of I.R. and S.R. (“Mother“), appeals a decision of the Brown County Court of Common Pleas, Juvenile Division, granting permanent custody of the children to a children services agency.
{¶ 2} The agency became involved with appellant and her two children in May 2019 when it received information that the children, who were ages eleven and six at the time,
{¶ 3} A case plan was prepared that required Mother to complete drug and mental health assessments and to follow recommendations for treatment.1 Mother was also required to maintain safe and stable housing and employment, complete parenting classes, and to comply with drug testing. Mother engaged in case plan services and completed drug treatment at Talbert House, and also completed parenting classes.
{¶ 4} Two extensions of temporary custody were granted during the progress of the case. Despite completing the requirements of the case plan, Mother tested positive for drugs several times and other concerns arose regarding Mother‘s ability to safely parent the children. The agency filed a motion for permanent custody of the children on May 21, 2021.
{¶ 5} At a hearing on the motion, the caseworker, the guardian ad litem and Mother all testified. The caseworker discussed the concerns that led to the initial complaint which included reports that Mother and her boyfriend, “T” were regularly fighting, including an incident in which T broke a window and cut his arm on the glass. In addition, the agency received reports of a stabbing incident involving Mother and reports that Mother was using methamphetamine in front of the children. An agency worker visited the home and Mother tested positive for methamphetamine, amphetamine, and marijuana.
{¶ 6} Mother‘s boyfriend, T, was initially on the case plan, but was removed after
{¶ 7} However, throughout the case, the agency had concerns regarding Mother‘s drug use. Prior to April 2021, there was concern regarding positive drug tests. In one instance, Mother tested positive for amphetamines on November 27, 2020, which was particularly concerning to the agency because the children began an extended stay with Mother on November 24, 2020. When questioned, Mother admitted that she used drugs, but stated that it was before the children‘s arrival. A January 20, 2021, drug test also raised concerns because the caseworker arrived at Mother‘s home at 8:00 a.m. and asked Mother to complete a urine drug test. Mother refused, slammed the door, and left the house. Mother returned three hours later and completed a urine test at that time. The caseworker asked Mother to also complete a mouth swab test at that time, and Mother engaged in concerning behavior, fumbling with the swab in her hand and had to be told to place it in the container. When the results were returned, the mouth swab was positive for methamphetamine and amphetamine while the urine test was negative for those substances.
{¶ 8} The agency was also concerned during the time period between April to May 2021 because Mother, who obtained a medical marijuana card in June 2020 for PTSD stress and anxiety, was testing positive for marijuana with the agency, but negative for her treatment provider. The agency was concerned that Mother was using fake urine for testing with the treatment provider who had less stringent observation policies.
{¶ 9} With regard to housing, Mother was living with T at the start of the case. The
{¶ 10} Mother also lived in her car for a period of time, then began living with J.P., her new boyfriend. The two broke up but continued to share housing. However, problems arose when J.P.‘s new girlfriend moved in and wanted Mother out of the house. There was considerable arguing in the house, and the police were called on several occasions. At the time of the hearing, Mother was still at this residence, but was planning to move out by September 2021.
{¶ 11} Although Mother had completed parenting classes, the agency still had concerns with Mother‘s ability to safely parent the children. Many of these concerns occurred during the two time periods in which the agency allowed Mother unsupervised parenting time. Initially, Mother had supervised visitations at the agency. The agency then allowed the children to come home with Mother for an extended stay. As mentioned above, Mother tested positive on November 27, 2020, during this visitation. Mother indicated the drug use occurred before the children arrived, and the agency decided to allow the visitation to continue, but ended the extended stay in January 2021 when Mother again tested positive for drugs. Visitation then returned to supervised visits at the agency.
{¶ 12} In June 2021, Mother began unsupervised weekend visitations, which occurred until August 2021. During these weekends, the agency was concerned because Mother allowed the children to be around inappropriate people. At one visitation in Mother‘s home, J.T.‘s girlfriend appeared high, along with several other adults in the home. When
{¶ 13} Because of concerns regarding the hotel visits, Mother and the agency agreed that visitations would take place at maternal grandmother‘s home. Mother and the children instead stayed with T and his girlfriend, L.B., and the children lied to the caseworker about where they had been during the weekend stay. The caseworker indicated that L.B. had an extensive history with children services and the agency would not have approved the children staying with L.B. and T. Mother also allowed I.R. to vape during a weekend visit and testified at the hearing that she believed vaping was “ok with limitations” such as I.R. having good grades and attendance at school.
{¶ 14} After considering the evidence, a magistrate granted permanent custody of the children to the agency. The trial court overruled objections to the magistrate‘s decision. On appeal, Mother raises two assignments of error for our review.
{¶ 15} Assignment of Error No. 1:
{¶ 16} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILDREN TO THE AGENCY DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 17} Before a parent‘s constitutionally protected liberty interest in the care and custody of her children may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for permanent custody have been met. In re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court‘s review of a juvenile
{¶ 18} In determining whether a juvenile court‘s decision to grant a motion for permanent custody is against the manifest weight of the evidence, an appellate court “‘weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.‘” In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. “In weighing the evidence, there is a presumption in favor of the findings made by the finder of fact and evidence susceptible to more than one construction will be construed to sustain the verdict and judgment.” In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15.
{¶ 19} Pursuant to
{¶ 20} In determining whether permanent custody is in a child‘s best interest,
(a) The interaction and interrelationship of the child with the child‘s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the child‘s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month
period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state; (d) The child‘s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency; [and]
(e) Whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the parents and child.
{¶ 21} “The juvenile court may also consider any other factors it deems relevant to the child‘s best interest.” In re A.J., 12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 24.
{¶ 22} Mother argues that the trial court‘s decision granting permanent custody is against the manifest weight of the evidence because she largely remedied the problems that led to removal of the children. She argues that she completed several long-term case plan goals and I.R., the oldest child, articulated a desire to return home.
{¶ 23} Mother first argues the interactions between her and the children demonstrated the existence of a strong bond. She contends that I.R., who was 13 years old at the time of the hearing, is very close to Mother and stated that she wanted to live with her mother.
{¶ 24} However, while Mother‘s assertions are supported by the record, the larger picture reveals that this factor does not weigh in Mother‘s favor. As the trial court found, the record reveals that while the children are bonded with Mother, the relationship was often an unhealthy bond. Both the caseworker and GAL testified that the children are protective of Mother when that is not their job. The children were often defensive of Mother‘s actions that were harmful to them. Although the children could identify certain situations as unsafe, they still tried to justify Mother‘s actions in placing them in those situations.
{¶ 25} Mother also argues that she addressed the agency‘s concerns that were necessary to reunify with the children. She argues her housing was consistent, she had employment, she completed and engaged in parenting education and counseling at Talbert House. While her substance abuse issues were unsettled, she argues that she still demonstrated that she addressed the situation and demonstrated a change in behavior. She further contends that while she tested positive through a mouth swab, protocol was not followed in obtaining the test and a later result was negative. She further asserts that while she tested positive for marijuana, these concerns are mitigated because she has a medical marijuana card.
{¶ 26} The trial court acknowledged that Mother had a medical marijuana card and determined that the fact that she tested positive for marijuana would not be weighed negatively against her in the decision.
{¶ 27} However, there were concerns throughout the case regarding Mother‘s drug use along with her evasiveness and use of fake urine. Although there were issues in obtaining the mouth swab, Mother herself handled the swab, displaying concerning behavior, and had to be told to place it into the container. While the urine tests on this day were negative, as discussed above, there was concern regarding Mother‘s behavior in complying with urine testing.
{¶ 28} Mother‘s housing situation was unstable at the time of the hearing. Mother admitted that her current living situation was not safe for the children and testified that she would have a home within the next month. Although it was not consistent throughout the case, Mother maintained employment.
{¶ 29} While Mother completed parenting classes, the caseworker and GAL both identified issues with Mother‘s parenting, most critically, an inability to make decisions that are in the best interest of the children. In particular, Mother engaged in relationships with
{¶ 30} Accordingly, we find no error in the trial court‘s determination that a grant of permanent custody to the agency was in the best interest of the children. Mother‘s first assignment of error is overruled.
{¶ 31} Assignment of Error No. 2:
{¶ 32} IN A PERMANENT CUSTODY CASE, THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE YOUNGEST CHILD‘S WISHES AS REQUIRED BY
{¶ 33} In her second assignment of error, Mother argues that the trial court erred in failing to consider the wishes of S.R., the younger child, as required by
{¶ 34} Pursuant to
{¶ 35} However, in this case, the trial court‘s decision addresses this factor and the
{¶ 36} Judgment affirmed.
M. POWELL, P.J., and PIPER, J., concur.