In re O.D.- L. , 2021 Ohio 79 ( 2021 )

[Cite as In re O.D.- L., 2021-Ohio-79.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: O.D.-L. :
:
: Appellate Case No. 28865
:
: Trial Court Case No. 2018-1374
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
:
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OPINION
Rendered on the 15th day of January, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J. 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, Montgomery County Children Services
CRISTY N. OAKES, Atty. Reg. No. 0081401, 2312 Far Hills Avenue, Suite 143, Dayton,
Ohio 45419
Attorney for Appellant, Mother
.............
DONOVAN, J.
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{¶ 1} Mother appeals from a judgment of the Montgomery County Court of
Common Pleas, Juvenile Division, which terminated her parental rights and granted
permanent custody of her child, O.D.-L., to Montgomery County Children’s Services
(MCCS). Mother filed a timely notice of appeal on August 6, 2020.
{¶ 2} O.D.-L. was born on September 5, 2017. He tested positive for controlled
substances at birth and, as a result, he was removed from Mother’s custody and placed
on a safety plan with Maternal Grandmother. 1 MCCS eventually became concerned
about Maternal Grandmother’s custody of O.D.-L. and her understanding of his medical
needs. Specifically, O.D.-L. suffers from hypoxic ischemic encephalopathy (HIE), an
irreversible condition in which brain tissue is either missing or deteriorating. As a result
of his condition, O.D.-L. is unlikely to ever be able to walk or speak. O.D.-L. was initially
fed through an NG-tube, a device inserted through the child’s nose down into his stomach.
Eventually, a gastronomy tube (G-tube) was surgically inserted so that O.D.-L.’s food
could be fed directly into his stomach.
{¶ 3} Because of his condition, O.D.-L. required the services of a full-time
caretaker, and he had several weekly medical appointments. O.D.-L.’s brain damage
has caused several other serious conditions, including cerebral palsy, quadriplegia,
muscle spasms, seizures, kidney issues, urine-reflux issues, and trouble swallowing.
Nevertheless, Maternal Grandmother informed MCCS that O.D.-L.’s medical issues were
merely the result of his premature birth, and that she believed that O.D.-L. would
1 As noted by the trial court, O.D.-L. has no legal father, although a particular man was
alleged to be the child’s father. MCCS met with the alleged father on two occasions and
provided him with information regarding the case plan and court proceedings. However,
the alleged father chose not participate in the case and never established paternity of
O.D.-L.
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eventually be able to play soccer. Maternal Grandmother also stated that O.D.-L. was
able to focus on people, known as tracking, even though he could not. The record
established that Maternal Grandmother also missed several of O.D.-L.’s medical
appointments, informing MCCS that she was overwhelmed with the number of weekly
appointments that she was required to attend with O.D.-L.
{¶ 4} On March 23, 2018, MCCS filed a complaint alleging that O.D.-L. was an
abused, neglected, and dependent child; he was removed from the custody of Maternal
Grandmother and placed in the interim custody of MCCS. On April 3, 2018, MCCS filed
an amended complaint requesting temporary custody to Maternal Grandmother, or in the
alternative to MCCS. At the adjudication hearing on May 16, 2018, the magistrate found
O.D.-L. to be neglected and dependent, and the parties agreed to place O.D.-L. in the
temporary custody of Maternal Grandmother.
{¶ 5} In October 2018, O.D.-L. was removed for a second time from the custody of
Maternal Grandmother. MCCS caseworker Luke Conover testified that, during the six
months before the second removal from Maternal Grandmother’s custody, O.D.-L. had
not gained any weight. This led MCCS to conclude that Maternal Grandmother did not
appreciate the severity of O.D.-L.’s condition and that she was unable to properly care for
him. Following the removal, O.D.-L. was placed with a foster family that was ultimately
unable to meet his many needs. O.D.-L. was then placed with a second foster family,
the Dimmicks, where he remained for the duration of the proceedings. The Dimmicks,
however, are not a foster-to-adopt foster family.
{¶ 6} Prior to MCCS’s seeking permanent custody of O.D.-L., Mother was placed
on a case plan. Mother’s case plan objectives were to get alcohol and/or drug treatment
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and follow any recommendations, get a mental health assessment, attend parenting
classes, attend O.D.-L.’s medical appointments, sign releases of information, meet with
a caseworker monthly, attend visits with O.D.-L., and provide drug screens.
{¶ 7} The record established that Mother failed to complete a mental health
assessment. Mother completed an alcohol and drug assessment at Family Services, but
she failed to follow any recommendations based upon the assessment. Two drug
screens were administered to her in 2018, and Mother tested positive on both occasions
for methamphetamine and amphetamines, after which she simply refused to be tested
again. MCCS informed Mother that a refusal would be considered as the equivalent of
a positive drug screen, but Mother still refused to submit to any further testing.
{¶ 8} Conover testified that while he was O.D.-L.’s assigned caseworker, Mother
attended only 50 to 65 percent of his medical appointments. MCCS caseworker Tairya
Fields testified that, once she was assigned to O.D.-L.’s case, Mother attended only
approximately ten percent of his medical appointments. Furthermore, Mother had not
been properly trained to feed O.D.-L. through his G-tube because she failed to attend the
appointments where she would have been trained.
{¶ 9} Significantly, on the days of her scheduled visits at MCCS, the foster mother
fed O.D.-L., because Mother had not received the necessary training. Mother was also
frequently late to the meetings. Conover testified that MCCS was also concerned with
Mother’s improper holding and support of O.D.-L.’s head and neck. Additionally, the
police had to remove Mother and Maternal Grandmother from one meeting because they
became disruptive.
{¶ 10} Fields testified that in February 2019, Mother began attending meetings
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more frequently than she had previously. However, Mother refused to allow MCCS to
enter her home, insisting on meeting with Fields outside. Thus, MCCS was unable to
verify that Mother’s home was safe and appropriate for O.D.-L.
{¶ 11} On August 19, 2019, MCCS filed a motion for permanent custody of O.D.-
L. On November 5, 2019, Mother filed a motion requesting that legal custody be
awarded to Maternal Grandmother. A hearing was held before the magistrate regarding
both motions on November 5, 2019. The guardian ad litem (GAL) recommended that
permanent custody of O.D.-L. be awarded to MCCS. On November 22, 2019, the
magistrate granted MCCS permanent custody of O.D.-L. Mother filed objections to the
magistrate’s decision on December 4, 2019. Mother supplemented her objections on
February 8, 2020. In a judgment issued on July 27, 2020, the juvenile court overruled
Mother’s objections and adopted the magistrate’s decision awarding permanent custody
of O.D.-L. to MCCS.
{¶ 12} It is from this judgment that Mother now appeals.
{¶ 13} Mother’s first assignment of error is as follows:
MCCS DID NOT INVESTIGATE THE EXISTENCE OF OTHER
RELATIVES, OTHER THAN MATERNAL GRANDMOTHER.
{¶ 14} In her first assignment of error, Mother contends that the juvenile court erred
by granting permanent custody to MCCS because it did not fully investigate the possibility
of placing O.D.-L. with relatives other than Maternal Grandmother.
{¶ 15} This court has held that the consideration of whether a child can be placed
with a relative is not a statutory requirement. In re R.L., 2d Dist. Greene Nos. 2012-CA-
32, 2012-CA-33, 2012-Ohio-6049, ¶ 46. “That possibility is a matter that ought to be
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considered in connection with the child's interaction and relationship with the child's
parents, relatives, foster caregivers, out-of-home providers, and any other person who
may significantly affect the child.” Id., citing In re F.C., 2d Dist. Montgomery No. 23803,
2010-Ohio-3113, ¶ 24. Accordingly, the trial court had no obligation to consider placing
O.D.-L. with a relative. In re E.S., 2d Dist. Clark No. 2016-CA-36, 2017-Ohio-219, ¶ 59.
Unlike biological parents, other relatives or friends seeking placement are not afforded
special status or presumptive rights. Id. A trial court need not find a child's relative
unsuitable before granting an agency permanent custody, and a court is not required to
favor a relative where an award of permanent custody serves the child's best interest. Id.,quoting In re A.C.H., 4th Dist. Gallia No. 11CA2, 2011-Ohio-5595, ¶ 44.
{¶ 16} Therefore, awarding permanent custody to MCCS without investigating all
possible relatives for placement, standing alone, is not reversible error. Notably, Mother
failed to identify any other suitable relative for placement.
{¶ 17} Mother’s first assignment of error is overruled.
{¶ 18} Mother’s second assignment of error is as follows:
THE COURT FAILED TO CONSIDER THE SUITABILITY OF MATERNAL
GRANDMOTHER AS A POSSIBLE CUSTODIAN FOR O.D.-L.
{¶ 19} In her second assignment, Mother argues that the juvenile court erred by
failing to properly consider the suitability of Maternal Grandmother as a custodian for
O.D.-L.
{¶ 20} However, “ ‘[a] parent has no standing to assert that the court abused its
discretion by failing to give the [grandparent] legal custody; rather, the challenge is limited
to whether the court's decision to terminate parental rights was proper.’ ” In re L.W., 8th
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Dist. Cuyahoga No. 104881, 2017-Ohio-657, ¶ 23, quoting In re S.G., 3d Dist. Defiance
No. 4-16-13, 2016-Ohio-8403, ¶ 52, citing In re Pittman, 9th Dist. Summit No. 20894,
2002-Ohio-2208, ¶ 70. If permanent custody to the children services agency is in the
children's best interest, legal custody to a relative necessarily is not. In re V.C., 8th Dist.
Cuyahoga Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 60, citing In re M.S.,
8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 11.
{¶ 21} In the instant case, Maternal Grandmother was not hindered from asserting
her rights at any point in the proceedings before the magistrate and the juvenile court.
Maternal Grandmother intervened before the magistrate, filed her own motion for
allocation of parental rights, and testified at the permanent custody hearing.
Significantly, Maternal Grandmother failed to appeal the juvenile court’s decision
overruling her motion and awarding permanent custody of O.D.-L. to MCCS. Thus,
Mother has no standing to assert Maternal Grandmother’s interests as a potential
custodian of O.D.-L. Rather, Mother's challenge to the juvenile court's judgment granting
permanent custody to MCCS is limited to whether the trial court improperly terminated
her own parental rights.
{¶ 22} Mother’s second assignment of error is overruled.
{¶ 23} Mother’s third assignment of error is as follows:
MOTHER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
BY HER TRIAL ATTORNEY’S FAILURE TO ASK MOTHER QUESTIONS
ABOUT HER CASE PLAN OBJECTIVES AND FAILURE TO OBJECT TO
INADMISSIBLE EVIDENCE.
{¶ 24} Mother argues that the she received ineffective assistance of counsel during
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the permanent custody hearing. Specifically, Mother contends that her counsel was
ineffective for the following reasons: 1) failing to ask Mother questions with respect to her
completion of her case plan objectives; 2) focusing on Maternal Grandmother’s ability to
provide suitable care for O.D.-L., claiming that Maternal Grandmother’s testimony was
the “best evidence” of that; 3) failing to call Maternal Grandmother as a witness so he
could have directly examined her; and 4) failing to object to a comment made by the
magistrate during the permanent custody hearing.
{¶ 25} The test for ineffective assistance of counsel applied in criminal cases is
equally applicable to permanent custody proceedings. In re J.P., 2d Dist. Montgomery
No. 27093, 2016-Ohio-5351, ¶ 65. Under the two-pronged test set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the represented party
must demonstrate that counsel's performance was deficient and fell below an objective
standard of reasonable representation, and that he or she was prejudiced by counsel's
performance. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
Proof of both parts of the test is necessary to establish the claim of ineffective assistance
of counsel. Bradley at 142.
{¶ 26} The standards for ineffective assistance of counsel “do not establish
mechanical rules”; rather, the focus is the fundamental fairness of the proceeding whose
result is being challenged. Strickland at 670. To establish the first prong of ineffective
assistance, there must be “a substantial violation” of one of counsel's essential duties to
his or her client, Bradley at 141, and the adequacy of counsel's performance must be
viewed in light of all of the circumstances surrounding the trial court proceedings.
Strickland at 688. Trial counsel is entitled to a presumption of competency. State v.
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Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). To establish the second prong
of ineffective assistance, the represented party must demonstrate that, but for counsel's
errors, there is a reasonable probability that the result of the trial would have been
different. Strickland at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id.{¶ 27} A represented party is not deprived of effective assistance of counsel when
counsel chooses, for strategic reasons, not to pursue every possible trial tactic. State v.
Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). The test for a claim of ineffective
assistance of counsel is not whether counsel pursued every possible defense; the test is
whether the defense chosen was objectively reasonable. Strickland. A reviewing court
may not second-guess decisions of counsel which can be considered matters of trial
strategy. State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128 (1985). Debatable strategic
and tactical decisions may not form the basis of a claim for ineffective assistance of
counsel, even if, in hindsight, it looks as if a better strategy had been available. State v.
Cook, 65 Ohio St.3d 516, 524, 605 N.E.2d 70 (1992).
{¶ 28} Initially, Mother argues that her counsel was ineffective for failing to ask her
questions about to her case plan objectives, including substance abuse treatment she
received and her attendance of O.D.-L.’s medical appointments. At the permanent
custody hearing, the following exchange occurred between Mother and her counsel
during her direct examination:
Counsel: Okay. And, uh, do you know if your [Maternal Grandmother] has
visited with [O.D.-L.] on a regular basis?
Mother: Yes, sir.
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Q: Yeah. And, uh, at some of those visits did you also – or at some of
those appointments or visits – uh, did you attend those appointments as
well?
A: Um, [Maternal Grandmother] attends most of his medical appointments.
Um, sometimes I haven’t because I’ve been having a lot of car trouble
myself. So, my car has just been a big, uh, pain in my butt, if you will.
Q: Now, during those – I want to say – I’ll say the visitations – let’s separate
them. The visits, when she visits with [O.D.-L.] have you observed
[Maternal Grandmother] to be appropriate?
A: Yes. Oh, yes.
Q: Nurturing?
A: Oh, yes. Definitely. [Maternal Grandmother] is a wonderful mother and
a wonderful grandmother.
Q: Now, let’s get back to the medical appointments. Was [Maternal
Grandmother], during those appointments, appropriate?
A: And did she appear to understand the child’s needs?
Q: Yes. She – she’s very willing to understand, and she – she’s, um, been
trying to teach herself through, um, videos, how to do the G-tube and how
it works, and how to properly care for O.D.-L. Um, yes, sir.
{¶ 29} Thus, the record establishes that Mother’s counsel did, in fact, ask her about
attending O.D.-L.’s medical appointments, and she clearly indicated that Maternal
Grandmother attended the majority of the appointments because Mother’s “car trouble”
restricted her from attending on a regular basis. Additionally, the focus of the permanent
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custody hearing from Mother's perspective was to establish that Maternal Grandmother
could provide an appropriate and suitable home for O.D.-L. and properly provide suitable
medical care for him. The purpose of Mother’s testimony was to establish the basis for
an award of custody to Maternal Grandmother, not Mother. Therefore, we fail to see how
any questions relating to Mother’s work on her case plan objectives or her attendance at
a substance abuse treatment facility would have furthered that goal. Furthermore, given
Mother’s history of drug abuse and her previously discussed failure to complete her case
plan objectives, it may have been counsel’s strategy to avoid asking questions which
could have damaged her case.
{¶ 30} Mother also argues that counsel’s focus on questioning her regarding
Maternal Grandmother’s caregiving ability constituted ineffective assistance because
Maternal Grandmother’s own testimony was the “best evidence” of that. Again, the focus
of the permanent custody hearing from Mother’s perspective was to establish the basis
for an award of custody to Maternal Grandmother. Mother even filed a motion to award
custody of O.D.-L. to Maternal Grandmother. Additionally, Maternal Grandmother’s
testimony regarding her ability to provide a suitable environment for O.D.-L. was not the
“best evidence” of her caregiving pursuant to Evid.R. 1002, nor was her testimony any
more probative than the testimony of other witnesses who had observed her interactions
with O.D.-L. The “best evidence” rule pursuant to Evid.R. 1002 stands for the proposition
that an original writing or recording is the best evidence of its content. The rule does not
state that one witness’s testimony has more probative value than the testimony of another
witness. Thus, Maternal Grandmother’s testimony regarding her ability to care and
provide for O.D.-L. was no more probative than Mother’s testimony or the testimony of
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any of the other witnesses regarding their observations of Maternal Grandmother’s
caregiving ability.
{¶ 31} Furthermore, Mother argues that counsel was ineffective for failing to call
Maternal Grandmother as a witness so that he could have directly examined her.
However, the record establishes the magistrate called Maternal Grandmother as a
witness and examined her as if on direct, and Mother’s counsel was given the opportunity
to cross-examine Maternal Grandmother. Under the rules of evidence, “[i]n Ohio, cross-
examination is not limited to the subject matter of direct examination. * * * It is available
for all matters pertinent to the case that the party calling the witness would have been
entitled or required to raise.” State v. Treesh, 90 Ohio St.3d 460, 481, 739 N.E.2d 749(2001). Accord State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104,
¶ 128 (saying that “[u]nder Evid.R. 611(B), cross-examination is not limited to the scope
of direct examination, but may cover ‘all relevant matters' ”).
{¶ 32} Accordingly, Mother’s counsel was free to inquire of Maternal Grandmother
regarding any subject he deemed to be relevant. Here, the record establishes that
Mother’s counsel questioned Maternal Grandmother regarding her ability to provide
adequate care to O.D.-L., her ability to attend his medical appointments, and her
willingness to take classes regarding O.D.-L.’s medical conditions. Since Mother’s
counsel was able to cross-examine Maternal Grandmother at the permanent custody
hearing, Mother did not receive ineffective assistance based upon his initial failure to call
her as a witness.
{¶ 33} Lastly, Mother argues that her counsel was ineffective for failing to object to
a remark made by the magistrate during the following exchange during the permanent
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custody hearing:
The Court: Mother, do you need to leave?
Mother: Yes, I do.
The Court: Okay. Thank you.
Mother: I feel sick.
The Court: You should feel sick.
Mother: I feel sick. [O.D.-L.] bonds with his mommy. You guys are sick.
{¶ 34} The above exchange occurred during the testimony of O.D.-L.’s foster
mother, who was describing the bond that had developed between O.D.-L. and all of the
members of the foster family. While the magistrate’s remark was imprudent and
unprofessional, the comment did not constitute evidence of any kind, and there is no
indication that the juvenile court relied upon the comment in any way when it awarded
permanent custody of O.D.-L. to MCCS. There is no evidence in the record that Mother
was prejudiced by the magistrate’s comment. Therefore, Mother’s counsel was not
ineffective for failing to object the magistrate’s comment.
{¶ 35} Mother also argues that counsel should have objected when he was
questioning Fields about alleged bruising suffered by O.D.-L. at the foster home, and the
magistrate limited any further questioning by Mother’s counsel regarding bruises. The
magistrate stated that the permanent custody hearing was not the venue for that type of
inquiry, and there was another judicial process in place for that type of complaint.
Additionally, prior to the magistrate’s restricting any further questioning regarding bruising
on O.D.-L., Fields testified that MCCS had sent nurses out to the foster home to
investigate the cause of the bruising, and the foster family was found to have not been
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responsible for the bruising. Thus, Mother’s counsel was not ineffective for failing to
object to the magistrate’s decision to restrict further questions about O.D.-L.’s bruises,
which had been found by MCCS to be unrelated to any care provided by the foster family.
{¶ 36} Mother’s third assignment of error is overruled.
{¶ 37} Mother’s fourth assignment of error is as follows:
THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT
CUSTODY OF O.D.L. TO MCCS, WHEN THE BEST OPTION AVAILABLE
WAS LEGAL CUSTODY TO MATERNAL GRANDMOTHER.
{¶ 38} “In a proceeding for the termination of parental rights, all of the court's
findings must be supported by clear and convincing evidence.” In re M.S., 2d Dist. Clark
No. 2008-CA-70, 2009-Ohio-3123, ¶ 15, citing R.C. 2151.414(E). A reviewing court will
not overturn a court's grant of permanent custody to the State “ ‘if the record contains
competent, credible evidence by which the court could have formed a firm belief or
conviction that the essential statutory elements * * * have been established.’ ” In re R.L.,
2d Dist. Greene Nos. 2012-CA-32, 2012-CA-33, 2012-Ohio-6049, ¶ 17, quoting In re
A.U., 2d Dist. Montgomery No. 22287, 2008-Ohio-187, ¶ 9. We review the trial court's
judgment for an abuse of discretion. See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶ 48.
{¶ 39} As this Court has noted:
A children services agency that has been awarded temporary
custody of a child may move for permanent custody. R.C. 2151.413(A).
Before the court may award the agency permanent custody of a child, the
court must conduct a hearing. R.C. 2151.414(A)(1).
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A trial court may not grant a permanent custody motion unless the
court determines that (1) it is in the best interest of the child to grant the
agency permanent custody, and (2) one of the conditions set forth in R.C.
2151.414(B)(1)(a)-(d) exists.
(Emphasis added.) In re J.E., 2d Dist. Clark No. 07-CA-68, 2008-Ohio-1308, ¶ 8-9.
{¶ 40} R.C. 2151.414 provides that, in finding that “the permanent commitment is
in the best interest of the child” a court must consider all relevant factors, including the
statutory factors listed in division (D) of the section: “(1) the interaction and
interrelationship of the child with the child's parents, relatives, foster parents and any other
person who may significantly affect the child; (2) the wishes of the child; (3) the custodial
history of the child * * *; (4) 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 (5) whether any of the factors in R.C. 2151.414(E)(7) through (11) are
applicable.” In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 15.
{¶ 41} Regarding O.D.-L.’s interactions and interrelationships, his severe medical
conditions render it difficult to establish whether he was bonded with anyone. O.D.-L.
was unable to show many signs of affection and did not laugh. Conover testified that
sometimes O.D.-L. simply lies in place without moving. Conversely, O.D.-L.’s foster
mother testified that O.D.-L. had bonded with her family and that he smiled at them. The
foster mother also testified that her other children listened to music with O.D.-L. and that
he seemed very comfortable. The foster family also read him bedtime stories and was
very sensitive to his needs.
{¶ 42} As previously stated, O.D.-L. tested positive for controlled substances at
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birth, and as result, he was removed from Mother’s custody and placed on a safety plan
with Maternal Grandmother. MCCS eventually developed concerns regarding Maternal
Grandmother’s custody of O.D.-L. and her understanding of his medical needs. Because
of the extent of his condition, O.D.-L. required the services of a full-time caretaker, and
he had several weekly medical appointments due to conditions including cerebral palsy,
quadriplegia, muscle spasms, seizures, kidney issues, urine-reflex issues, and trouble
swallowing.
{¶ 43} Maternal Grandmother unrealistically believed that O.D.-L. would eventually
be able to play soccer. Maternal Grandmother also believed tht O.D.-L. was able to
focus on people, even though he could not. The record established that Maternal
Grandmother missed several of O.D.-L.’s medical appointments and told MCCS that she
was overwhelmed with the number of weekly appointments that she was required to
attend with him.
{¶ 44} As previously stated, O.D.-L. was removed for a second time from the
custody of Maternal Grandmother because he had not gained weight over a six-month
period. This led MCCS to the conclusion that Maternal Grandmother did not appreciate
the severity of O.D.-L.’s condition and that she was unable to properly care for him.
{¶ 45} We also note that while O.D.-L. was on the safety plan, Mother brought
O.D.-L. to see his alleged father, who physically assaulted Mother in front of O.D.-L. As
previously stated, the alleged father never sought to establish paternity and refused to
participate in any of the proceedings.
{¶ 46} In contrast, Foster Mother testified that she had taken O.D.-L. to each of his
approximately 150 medical appointments since he was placed in her care. Foster
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Mother testified that she had learned about O.D.-L.’s medical needs and had experience
in caring for him. Both Foster Mother and Foster Father had received G-tube training
and could feed O.D.-L. properly. Foster Mother testified that O.D.-L. was on a daily
schedule and very well cared for.
{¶ 47} R.C. 2151.413 dictates when a children services agency may seek
permanent custody of a child. With some exceptions, R.C. 2151.413(D) generally
requires a children services agency to pursue permanent custody of a child that has been
in the agency's temporary custody for 12 or more months of a consecutive 22-month
period. As noted by the juvenile court, on March 23, 2018, MCCS filed a complaint
alleging that O.D.-L. was an abused, neglected, and dependent child, and he was
removed from the custody of Maternal Grandmother and placed in the interim custody of
MCCS. On April 3, 2018, MCCS filed an amended complaint requesting temporary
custody to Maternal Grandmother, or in the alternative to MCCS. At the adjudication
hearing on May 16, 2018, the magistrate found O.D.-L. to be neglected and dependent,
and the parties agreed that O.D.-L. would be placed in the temporary custody of Maternal
Grandmother. The juvenile court found that, pursuant to R.C. 2151.414(B)(1)(d), the
date of the adjudication was the appropriate date from which to calculate the “twelve of
twenty-two” requirement. On August 19, 2019, MCCS filed a motion for permanent
custody of O.D.-L. O.D.-L. had therefore remained in the custody of MCCS throughout
this time period, which clearly exceeded 12 months of the 22-month period and satisfied
R.C. 2151.414(B)(1)(d).
{¶ 48} Finally, we agree with the juvenile court’s finding that O.D.-L.’s secure
placement could not be achieved without granting MCCS permanent custody. O.D.-L.
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has been removed twice from Maternal Grandmother’s custody. The record established
that Mother had failed to complete her case plan objectives. Mother completed an
alcohol and drug assessment at Family Services, but failed to follow any
recommendations based upon the assessment. She tested positive on two drug screens
administered to her in 2018, after which she simply refused to be tested again. MCCS
informed Mother that a refusal would be considered as the equivalent of a positive drug
screen, but she still refused to submit to further testing.
{¶ 49} Mother missed a large percentage of O.D.-L.’s medical appointments.
Furthermore, she was not properly trained to feed O.D.-L. through his G-tube because
she failed to attend the appointments where she would have been trained. There were
also some issues with Mother’s visitation with O.D.-L., including lateness, inability to feed
or properly hold O.D.-L., and disruptive behavior, as described above. Mother also
refused to allow MCCS to enter her home, so MCCS was unable to verify that Mother’s
home was safe and appropriate for O.D.-L.
{¶ 50} It was clear that O.D.-L. required a legally secure placement and that such
security could not be achieved without a grant of permanent custody to MCCS. In other
words, the juvenile court's finding that granting permanent custody to MCCS was in O.D.-
L.’s best interest was supported by clear and convincing evidence, and no abuse of
discretion is established.
{¶ 51} Mother’s fourth assignment of error is overruled.
{¶ 52} All of Mother’s assignments of error having been overruled, the judgment of
the juvenile court is affirmed.
.............
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HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Cristy N. Oakes
B.D
D.L.
Michael Booher
Hon. Anthony Capizzi