In re L.H.
OPINION
Rendered on the 1st day of October, 2021.
MATHIAS H. HECK, JR. by J. JOSHUA RIZZO, Atty. Reg. No. 0099218 Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Appellee, MCCS
SARA M. BARRY, Atty. Reg. No. 0090909, 301 West First Street, Suite 270, Dayton, Ohio 45402 Attorney for Appellant, Mother
{¶ 1} Mother appeals from the trial court‘s judgment entry overruling her objections to a magistrate‘s decision and awarding appellee Montgomery County Children Services (“MCCS“) permanent custody of Mother‘s child, L.H.
{¶ 2} Mother advances four assignments of error. First, she contends awarding MCCS permanent custody was against the weight of the evidence and not in the child‘s best interest. Second, she claims MCCS failed to make reasonable efforts to reunify her with L.H. Third, she asserts that L.H.‘s guardian ad litem did not adequately investigate the child‘s best interest. Fourth, she argues in the alternative that the trial court should have awarded legal custody to L.H.‘s maternal aunt.
{¶ 3} The record reflects that MCCS filed a dependency complaint in July 2017, alleging that L.H. had engaged in sexual contact with a sibling in Mother‘s home. At the time of the complaint, Mother resided with and was the adoptive parent of several siblings with developmental disabilities. They included L.H. and the minor victim of the touching. As a result of the sexual touching, MCCS obtained interim temporary custody and, following a delinquency adjudication, the agency was awarded temporary custody.
{¶ 4} Upon being removed from Mother‘s home, L.H. initially was placed in the
{¶ 5} Following two extensions of temporary custody, MCCS filed its permanent-custody motion in May 2019. Mother responded with her own motion for legal custody. Alternatively, she requested a disposition of legal custody to her sister, L.H.‘s aunt, with whom the child previously had resided. The matter proceeded to a March 3, 2020 hearing before a magistrate. Witnesses at the hearing included a caseworker, Mother, L.H.‘s aunt, and the guardian ad litem. Based on the evidence presented, the magistrate filed an April 20, 2020 decision sustaining MCCS‘s motion, awarding the agency permanent custody, and terminating Mother‘s parental rights. Mother filed objections and, after obtaining a transcript, supplemental objections. Mother argued (1) the statutory best-interest factors supported returning L.H. to her, (2) her due process rights were violated when the guardian ad litem‘s report was not filed or exchanged until half way through the custody hearing, (3) the guardian ad litem‘s investigation was deficient, (4) the magistrate erred in excluding evidence and testimony about L.H.‘s placement at Piney Ridge, and (5) the magistrate should have awarded legal custody to L.H.‘s aunt. The trial court overruled Mother‘s objections in an April 28, 2021 ruling and found that awarding MCCS permanent custody was in the child‘s best interest. This appeal followed.
{¶ 6} In her first assignment of error, Mother contends awarding MCCS permanent custody was against the weight of the evidence and not in L.H.‘s best interest. She asserts that returning legal custody to her was in the child‘s best interest and that the relevant statutory factors supported such a conclusion.
{¶ 7} ”
{¶ 8} In determining a child‘s best interest,
{¶ 9} We review a trial court‘s permanent-custody determination for an abuse of discretion. In re S.F., 2d Dist. Montgomery No. 28606, 2020-Ohio-693, ¶ 42. A permanent-custody determination is unreasonable, and may be reversed as an abuse of discretion, if the record lacks clear and convincing evidence “by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.” In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15; see also In re S.F. at ¶ 43-45.
{¶ 10} With the forgoing standards in mind, we find a lack of clear and convincing evidence to support the trial court‘s determination that awarding MCCS permanent custody was in L.H.‘s best interest. As a threshold matter, we note that the agency‘s initial involvement had nothing to do with any inappropriate care or conduct by Mother. The record reflects that Mother adopted L.H. and the child‘s siblings when L.H. was six months old. (Hearing Tr. at 62.) MCCS became involved and filed a dependency complaint after Mother herself reported that L.H. had acted out sexually with a sibling in Mother‘s home. (Id. at 37.) A case worker admitted that Mother had been completely cooperative and had done everything asked of her. In the caseworker‘s opinion, there was not “anything else Mother could do right now” to regain custody. (Id. at 36.)
{¶ 11} MCCS‘s concern was that L.H. had shown inconsistent progress and had continued to act out sexually while in his residential-treatment programs. (Id.) The caseworker noted that if L.H. were returned to Mother “[h]e would be in the home with his victim, who is delayed, as well as two other individuals who are delayed and have limited ability to protect themselves.” (Id. at 22.) The caseworker explained that if MCCS obtained permanent custody L.H. would complete his current treatment at the Arkansas facility and then be placed for adoption. (Id. at 25, 37-38.) MCCS believed that this disposition was in L.H.‘s best interest. (Id. at 25-26.) The guardian ad litem testified and agreed with the caseworker‘s assessment. While recognizing a bond between Mother and L.H., the guardian ad litem opined that awarding MCCS permanent custody was in the child‘s best interest because “it‘s gonna be a long term treatment, if he‘s ever getting out of treatment.” (Id. at 89-90.) At the time of the hearing, L.H. was 13 years old and had been out of Mother‘s home for roughly three years. (Id. at 37, 56-57.)
{¶ 12} For her part, Mother agreed to keep L.H. in the Arkansas residential-treatment
{¶ 13} L.H.‘s aunt also testified at the hearing. She confirmed her ability to help Mother with the child. L.H. stated that she had enjoyed a relationship with L.H. since his adoption at six months of age. (Id. at 70.) She explained that L.H. had lived with her, without any negative incidents, for four months after being removed from Mother‘s home and before entering a residential-treatment facility. (Id. at 70-71.) Consistent with Mother‘s alternative request for an award of legal custody to her sister, L.H.‘s aunt testified that she was willing to accept custody. (Id. at 71.) She was divorced and living alone but recently had become engaged to be married. (Id. at 72, 76.) With regard to the lack of a home study, the aunt testified that she had contacted MCCS “several times” about completing it. (Id. at 75.) Her most recent contact had been the previous week. (Id. at 24.) At the time of the hearing, the aunt and the caseworker had not found a mutually agreeable time for a home visit. (Id. at 24, 72.) The aunt noted, however, that an MCCS representative previously had been inside her home when L.H. lived with her for four months. (Id. at 75.)
{¶ 14} Because MCCS‘s temporary custody already had been extended twice and L.H. had been in the agency‘s custody for more than two years, the trial court essentially had three custody options.1 First, it could terminate parental rights and award MCCS permanent custody. Second, it could return legal custody of L.H. to Mother. Or third, it could grant Mother‘s alternative request and award legal custody to L.H.‘s aunt.
{¶ 15} In our view, the evidence did not clearly and convincingly support the first option. The pertinent
{¶ 16} With regard to the first factor, the record indicates that L.H. enjoyed a loving and bonded relationship with his Mother, his aunt, and his siblings. But
{¶ 17} As for the second factor, L.H. had expressed a desire to be reunited with Mother or, alternatively, to be placed with his aunt. Mother also had expressed a desire to have legal custody returned to her.
{¶ 18} Concerning the third factor, L.H. had been in MCCS‘s temporary custody for more than two years, and temporary custody could not be extended again. Although MCCS expressed concern about his readiness to return home to Mother, no one suggested that course of action at the time of the hearing. Mother and MCCS both planned to keep L.H. in the residential-treatment program at Perimeter of Forest City in Arkansas. And the guardian ad litem expressed an opinion that the child would need to remain in a treatment facility for a long time or, perhaps, permanently. The issue was who should have custody while he was there and whether Mother‘s parental rights should be terminated, preventing him from returning to her home upon his eventual release.
{¶ 19} Finally, with regard to the fourth factor, L.H. undoubtedly needed a legally secure placement. The issue was whether such a placement could be achieved without awarding MCCS permanent custody. Upon L.H.‘s completion of the program at Perimeter of Forest City, MCCS planned to place him for adoption. But 13-year-old L.H. was a developmentally disabled minority child with an IQ of approximately 62. (Id. at 29, 37-38.) He had mental-health diagnoses, had a history of acting out sexually, and on two occasions roughly 100 different placement facilities had refused to accept him. (Id.) Despite the caseworker‘s optimistic assurance that “every child is adoptable” (Id. at 38), we question L.H.‘s prospects for adoption. In the permanent custody of MCCS, he likely would be relegated to a group home or foster care with strangers until reaching adulthood. In either situation, MCCS‘s concerns about L.H. re-engaging in inappropriate behavior still could be realized.
{¶ 20} One possibility might be to place him in an adoptive or foster home with no other children. Of course, this result could be achieved simply by awarding L.H.‘s aunt legal custody. The record persuades us that awarding legal custody to L.H.‘s aunt, with whom the child already had a bonded relationship, would serve his interest far better than awarding MCCS permanent custody, terminating Mother‘s parental rights, and extinguishing forever the only lasting relationships the child ever has known. The problem with awarding L.H.‘s aunt legal custody is that a required home study had not been completed at the time of the hearing, and MCCS‘s temporary custody could not be extended. The record suggests that the agency also may have needed to conduct a background check on the aunt‘s new fiancée. In light of these issues, we believe the evidence supported the only other option, returning L.H. to Mother‘s legal custody.
{¶ 21} Mother raised the denial of her own motion for legal custody as her first objection to the magistrate‘s decision. When deciding whether to return a child to the legal custody of a parent, courts typically look to the best-interest factors found in
{¶ 22} As noted above, Mother agreed to keep L.H. in the program at Perimeter of Forest City until its completion. Returning L.H. to Mother‘s legal custody while he completed the program in Arkansas would not have endangered L.H.‘s siblings, whereas granting MCCS permanent custody while the child remained in the program unnecessarily precluded the possibility of Mother reuniting with him.3 Upon L.H.‘s eventual completion of the Perimeter program, if Mother had legal custody she then could choose either to supervise him in her home or, potentially, to allow him to reside with the aunt, who lived one mile away and had no children. At the hearing, Mother identified precautions she had taken to prevent a recurrence of the sexual touching. She also expressed her willingness to install alarms and surveillance equipment to help prevent a recurrence. If these precautions were to prove insufficient, Mother could allow L.H.‘s aunt to obtain legal custody, as the aunt testified that she was willing to do. We also see no reason why an award of legal custody to Mother could not be accompanied by an order of protective supervision to MCCS, thereby enabling the agency to monitor the situation and to intervene again if necessary.
{¶ 23} With regard to the best-interest factors in
{¶ 24} Although the present case admittedly involves a difficult issue with no simple solution, we do not find clear and convincing evidence to support terminating Mother‘s parental rights and awarding permanent custody to MCCS. At the time of the hearing, the only other potentially viable options included awarding legal custody to L.H.‘s aunt or returning the child to Mother‘s legal custody. Because MCCS‘s temporary custody had expired and could not be extended and a required home study on the aunt had not been
{¶ 25} Having found that Mother is entitled to have legal custody returned to her, we need not address her second, third, and fourth assignments of error. Our disposition of the first assignment of error renders moot the other issues Mother raises. Accordingly, we overrule the second, third, and fourth assignments of error as moot.
{¶ 26} The trial court‘s judgment is reversed, and the case is remanded for the trial court to journalize an entry awarding Mother legal custody of L.H. with a grant of protective supervision to MCCS.
DONOVAN, J. and WELBAUM, J., concur.
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Mathias H. Heck, Jr. J. Joshua Rizzo Sara M. Barry Hon. Helen C. Wallace