In re A.M. , 2023 Ohio 1441 ( 2023 )

[Cite as In re A.M., 2023-Ohio-1441.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
IN THE MATTER OF: CASE NOS. 2022-A-0107
2022-A-0108
A.M. AND A.M.,
DEPENDENT CHILDREN
Civil Appeals from the
Court of Common Pleas,
Juvenile Division
Trial Court Nos. 2018 JC 00136
2018 JC 00137
OPINION
Decided: April 25, 2023
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato,
Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Appellee,
Ashtabula County Children Services Board).
Mandy J. Gwirtz, Gwirtz Law, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123 (For
Appellant, Rebecca Henery).
Carmen M. Hamper, P.O. Box 2834, Ashtabula, OH 44005 (For A.M. and A.M.).
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, Rebecca Henery (“Ms. Henery”),
appeals the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division,
overruling her objections to the magistrate’s decision and granting permanent custody of
her two minor children to appellee, Ashtabula County Children Services Board
(“ACCSB”).
{¶2} Ms. Henery asserts one assignment of error, contending that the trial court
erred by granting permanent custody of the children to ACCSB contrary to the manifest
weight of the evidence.
{¶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 to ACCSB.
As a result, the trial court’s judgment was not against the manifest weight of the evidence.
{¶4} Thus, we affirm the judgment of the Ashtabula County Court of Common
Pleas, Juvenile Division.
Substantive and Procedural History
{¶5} This matter involves the two minor children of Ms. Henery and Samuel
Marshall, Jr. (“Mr. Marshall”) who were born, respectively, in 2013 and 2016.
Emergency Temporary Custody
{¶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
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ACCSB’s emergency temporary custody of the children. The court appointed a guardian
ad litem (“GAL”) for the children and counsel for Mr. Marshall and Ms. Henery.
{¶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.”
Adjudication and Disposition
{¶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.
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Henery had made progress on her case plan, that she obtained separate housing from
Mr. Marshall in Conneaut, and that she had completed weekend visits with the children.
However, there were indications that Mr. Marshall had been violent, which caused Ms.
Henery to leave her residence and stay with a friend. The GAL also reported that Mr.
Marshall and Ms. Henery operated a business together on Main Avenue in Ashtabula.
The trial court found that Ms. Henery’s motion of October 11, 2018, was moot and
prohibited Mr. Marshall from being present during her visitation time with the children.
{¶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.
Extension of Temporary Custody
{¶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.
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{¶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
days. ACCSB arrived, removed the children from Ms. Henery’s care, and placed them in
foster care.
{¶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 a recent counseling appointment; he was employed at a
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factory; and he was residing in the Main Avenue store. The trial court extended temporary
custody for a six-month period.
{¶17} On April 14, 2020, the GAL filed a motion to suspend visitation. Ms. Henery
had arrived unexpectedly at the home of the children’s foster family on Easter evening,
entered the screened-in porch, and would not leave. The trial court granted the GAL’s
motion and held a hearing on April 29, 2020. Ms. Henery was present via audio and was
represented by counsel. Mr. Marshall did not appear but was represented by counsel.
The GAL withdrew her motion, and Ms. Henery was ordered to have no direct or indirect
contact with the foster family.
{¶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.
Permanent Custody
{¶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.
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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
on her own behalf and presented exhibits. Mr. Marshall presented no witnesses or
evidence. The children’s foster mother made an unsworn statement, and the GAL’s
reports were admitted.
{¶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.
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{¶24} After June 2020, Ms. Henery was compliant with her mental health and
substance abuse treatment requirements; she had obtained suitable housing through the
Ashtabula Metropolitan Housing Authority (“AMHA”); and she was receiving
unemployment compensation and child support; however, certain issues remained. Ms.
Henery still did not maintain steady employment. In August 2020, Ms. Henery tested
positive for amphetamines and methamphetamines, and she refused to submit to a hair
screen for the purpose of detecting ongoing drug use. Ms. Henery was also observed at
Mr. Marshall’s residence within the last 30 days and recently reported to the police that
he “stabbed” the tire of her male friend’s vehicle and left a note on her doorstep.
{¶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 also 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
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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.
{¶28} During her testimony, Ms. Henery denied ever having a problem with
alcohol or being a methamphetamine user. She also disputed the accuracy of the August
2020 positive drug test and stated that she obtained a hair screen of her own volition in
late October 2020 and tested negative.
{¶29} Following the presentation of evidence, the magistrate heard argument from
counsel. Relevant here, the children’s counsel requested that ACCSB’s motion be
denied, arguing that ACCSB failed to meet its burden to show that the children cannot or
should not be placed back in the home of either parent and that granting permanent
custody to ACCSB is in the best interest of the children.
{¶30} 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 interest.
{¶31} 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.
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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.
{¶32} 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.
{¶33} Ms. Henery filed two notices of appeal, which this court sua sponte
consolidated for all purposes.1 She raises the following assignment of error:
{¶34} “The trial court erred by granting permanent custody of [the children] to the
Ashtabula County Children Services Board contrary to the manifest weight of the
evidence.”
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 10341. Mr. Marshall also filed two notices of appeal, which we consolidated. We affirmed the trial court’s
judgment in relation to Mr. Marshall in In re A.M., 11th Dist. Ashtabula Nos. 2022-A-0090 and 2022-A-0091,
2023-Ohio-671.
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(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.
{¶37} The trial court must apply a two-pronged analysis when ruling on a motion
for permanent custody. In re Krems, 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-
2449, ¶ 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 R.C. 2151.414(B)(1)(a) through (e) applies and that it is in the best interest
of the child. R.C. 2151.414(B)(1).
{¶38} “An appellate court will not reverse a juvenile court’s termination of parental
rights and award of permanent custody to an agency if the judgment is supported by clear
and convincing evidence.” In re Krems at ¶ 36. “[C]lear and convincing evidence is more
than a mere preponderance of the evidence; it is evidence sufficient to produce in the
mind of the trier of fact a firm belief or conviction as to the facts sought to be established.”
Id. “Once the clear and convincing standard has been met to the satisfaction of the [trial]
court, the reviewing court must examine the record and determine if the trier of fact had
sufficient evidence before it to satisfy this burden of proof.” In re Adoption of Holcomb,
18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985).
{¶39} Ms. Henery contends that the trial court’s judgment is against the manifest
weight of the evidence. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.’” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting
Black’s Law Dictionary 1594 (6th Ed. 1990). “A trial court’s judgment terminating parental
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rights and awarding permanent custody to an agency will not be reversed as against the
manifest weight of the evidence if it is supported by clear and convincing evidence.” In
re Belanger, 11th Dist. Ashtabula No. 2002-A-0047, 2002-Ohio-4956, ¶ 17.
The Children’s Best Interest
{¶40} Ms. Henery sole assignment of error challenges the second prong of the
permanent custody analysis, i.e., the trial court’s determination that it was in the children’s
best interest to grant permanent custody to ACCSB.
{¶41} 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 R.C. 2151.414(D)(1)(a)
through (e). R.C. 2151.414(D)(1). “The statute requires a weighing of all the relevant
factors * * *.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶
64. “No one element is given greater weight or heightened significance.” In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
The Children’s Interactions/Interrelationships
{¶42} R.C. 2151.414(D)(1)(a) requires the trial court to consider “[t]he 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[.]”
{¶43} According to Ms. Henery, the evidence showed that the children were
bonded to her, while the magistrate incorrectly found that the ACCSB caseworker was
not able to observe this bond.
{¶44} Ms. Henery mischaracterizes the magistrate’s finding. The magistrate
expressly found that “[t]he minor children are bonded to Mother and Father.” However,
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the magistrate noted that the parents’ visits have not progressed past supervised visits
due to their lack of case plan progress. Similarly, in considering the factor in R.C.
2151.414(D)(1)(d), the magistrate stated that “neither the ACCSB caseworker nor the
[GAL] have been able to observe Mother or Father interact with the minor children in a
live and unsupervised fashion because of the lack of progression on the Case Plan.”
Thus, contrary to Ms. Henery’s assertion, the magistrate did not find a lack of bonding or
visitation. The magistrate found a lack of unsupervised visitation—a fact that cannot
reasonably be disputed.
{¶45} Ms. Henery also fails to acknowledge the magistrate’s additional findings
under this factor, including that the children are residing together in their foster mother’s
care where all of their needs are being met; the older child is thriving in foster care and is
excelling in school; the children are bonded to their foster mother; the children regularly
attend counseling; the parents’ virtual visits during the pandemic have been highly
inconsistent and, at times, inappropriate; and the parents’ statements and unkept
promises during virtual visits have negatively affected the children. These findings are
supported by substantial competent, credible evidence in the record.
The Children’s Wishes
{¶46} R.C. 2151.414(D)(1)(b) requires the trial court to consider “[t]he 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[.]”
{¶47} Ms. Henery contends that the trial court “ignore[d] this factor” because the
children told the GAL that they wanted to return to their mother.
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{¶48} We disagree with Ms. Henery’s assertion. The magistrate found that the
children, who were eight and four years old, “are too young to express their wishes
independently” but that “the children’s wishes were expressed through the report,
recommendation, and testimony of the Guardian ad Litem, and arguments of counsel.”
The GAL’s report indicates that both children stated they wished to remain with their foster
mother and, alternatively, that they wished to live with their parents. The children’s
separate counsel participated in the permanent custody hearing and argued against
granting permanent custody to ACCSB. Thus, the trial court fulfilled its statutory duty to
consider the children’s wishes.
The Children’s Custodial History
{¶49} R.C. 2151.414(D)(1)(c) requires the trial court to consider “[t]he custodial
history of the child, including whether the child has 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 * * *[.]”
{¶50} The magistrate found that ACCSB obtained temporary custody of the
children on July 27, 2018; ACCSB placed the children in Ms. Henery’s care for a period
of time while it maintained temporary custody; 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; the children have been in their current
placement since August 27, 2019; and the children have been in ACCSB’s temporary
custody for over 21 months out of a consecutive 22-month period. Ms. Henery does not
challenge these findings on appeal.
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Legally Secure Permanent Placement
{¶51} R.C. 2151.414(D)(1)(d) requires the trial court to consider “[t]he 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[.]”
{¶52} According to Ms. Henery, she substantially remedied the conditions that
caused the children’s removal, which she demonstrated through her case plan
compliance.
{¶53} The evidence establishes that prior to June 2020, Ms. Henery was not
compliant with her case plan in several respects. While she began to substantially
comply, this occurred well after ACCSB filed its motion for permanent custody, at which
time the children had been in ACCSB’s temporary custody for well over 12 of 22
consecutive months. As this court has explained, the 12 out of 22-month criterion
“provides a parent with ample opportunity to demonstrate his or her parenting fitness.” In
re A.J., 11th Dist. Trumbull No. 2010-T-0041, 2010-Ohio-4553, ¶ 45. “‘If the child has
been placed in a children services agency’s temporary custody for at least twelve months
of the prior twenty-two months, some reason must exist why the child has not been in the
parent’s care. The reason normally would be because the parent has been unable to
demonstrate that the parent is able, suitable, or fit to care for the child.’” Id. at ¶ 42,
quoting In re Workman, 4th Dist. Vinton No. 02CA574, 2003-Ohio-2220, ¶ 39.
{¶54} In addition, Ms. Henery’s substantial compliance after June 2020, by itself,
is not dispositive. “[T]he 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-
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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.”
{¶55} Here, the magistrate found that Ms. Henery had not remedied the concerns
that were the basis for the children’s removal. Rather than maintaining sufficient stability
to alleviate ACCSB’s concerns, Ms. Henery demonstrated ongoing instability in the areas
of employment and income, housing, substance abuse, and her relationship with Mr.
Marshall. In addition, for over two years, Ms. Henery had not interacted with the children
in an unsupervised fashion due to her behavior and actions. The magistrate’s findings
are supported by substantial competent, credible evidence in the record.
{¶56} It appears the trial court assigned little weight to the evidence Ms. Henery
submitted at the permanent custody hearing; however, issues relating to the credibility of
witnesses and the weight to be given the evidence are primarily for the trier of fact. In re
D.H., 11th Dist. Ashtabula No. 2017-A-0081, 2018-Ohio-630, ¶ 18. This is because the
trier of fact “has the best opportunity to view the demeanor, attitude, and credibility of
each witness, something that does not translate well on the written page.” Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997).
{¶57} Further, a review of Ms. Henery’s evidence does not compel a contrary
conclusion. For instance, Ms. Henery submitted an exhibit indicating she had maintained
a residence in Conneaut since July 2020; however, as the magistrate noted, Ms. Henery’s
submitted pay stubs for the same time period listed her residence as Beatitude House in
Ashtabula and later a different address in Conneaut. Therefore, the magistrate
reasonably concluded that Ms. Henery’s housing remained unstable. In addition, the
transcript of Ms. Henery’s testimony suggests she sought to minimize or rationalize the
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evidence in the record regarding her past behavior and volatile relationship with Mr.
Marshall. Therefore, the magistrate may have reasonably concluded that Ms. Henery’s
testimony lacked credibility.
Other Factors
{¶58} Finally, R.C. 2151.414(D)(1)(e) requires the trial court to consider “[w]hether
any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents
and child.” The magistrate found no applicable factors under these subsections, and Ms.
Henery does not challenge this finding on appeal.
{¶59} In sum, we find that clear and convincing evidence supported the trial court
granting permanent custody to ACCSB. Therefore, the trial court’s judgment was not
against the manifest weight of the evidence.
{¶60} Ms. Henery’s sole assignment of error is without merit.
{¶61} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, Juvenile Division, is affirmed.
JOHN J. EKLUND, P.J., concurs,
MATT LYNCH, J., dissents with a Dissenting Opinion.
____________________
MATT LYNCH, J., dissents with a Dissenting Opinion.
{¶62} It is a commonplace in permanent custody proceedings to recognize the
termination of a parent’s rights as the “family law equivalent of the death penalty in a
criminal case.” Supra at ¶ 35. What is not so commonplace is an insistence that the
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evidence supporting the termination of a parent’s rights be commensurate with the
rhetoric regarding such decisions. Once it is demonstrated that a child has been in the
temporary custody of a children services agency for twelve or more months of a twenty-
two-month period, it is only a question of the child’s best interest before the metaphorical
ax falls. Notably, the integrity of the family unit has been found an “essential” right for the
purposes of the Due Process Clause but is not explicitly recognized as a factor affecting
a child’s best interests. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.E.2d
551 (1972). In the present case, the evidence falls far short of demonstrating that Henery
has done or failed to do anything approximating a capital crime. Essentially, Ashtabula
Children Services justifies the termination of her parental rights because it is
uncomfortable with her behavior, rather than for any specific or concrete deficiency in
Henery’s ability to parent. Regardless of the legitimacy of these concerns, they do not
justify the sentence of execution.
{¶63} Certain matters should be set forth in the beginning because they are not
evident in the lower court’s or the majority’s decisions. These children have never been
abused either physically or psychologically. While in Henery’s custody, they have never
been without food, shelter, or proper medical care. There is scant evidence of domestic
violence between Henery and Marshall and just as little evidence that the children were
ever exposed to it.
{¶64} The majority identifies the following concerns/goals at the time of the
children’s removal in August 2018: chronic alcohol and other substance abuse; take a
parenting class; complete drug and alcohol assessments; complete mental health
assessment; and obtain adequate housing and employment. Supra at ¶ 8.
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{¶65} Most of these concerns have not been issues for Henery during the
pendency of this case. She took the parenting class early in the case. She worked
throughout the pendency of the case and only recently, after the filing of the motion for
permanent custody, did she go on unemployment. The uncontradicted evidence is that
she is presently working with the Community Counseling Center to obtain employment.
As noted above, she has never been homeless or without food or without means of
support.
{¶66} Henery underwent an alcohol assessment early in this case. There is no
evidence that she failed to comply with any recommendation with respect to alcohol.
There is no evidence that alcohol has been an issue for Henery during the pendency of
this case.
{¶67} The same is true with regard to drug abuse. Henery underwent an initial
assessment and did not meet the criteria for substance dependency. She submitted to
drug screens through Signature Health. From August 2018 until August 2020, the results
were negative. In August 2020, she tested positive for amphetamine and/or
methamphetamine. Since August 2020, the results have been negative. Henery disputes
the positive August 2020 result and subsequently submitted to a hair follicle drug screen
which came back negative and so contradicts the August screen. Regardless of whether
the August 2020 screen was valid, it was the only positive test during the pendency of
this case. There is no diagnosis of opiate dependency and no evidence of such
dependency apart from a single test result. Stated otherwise, none of the behaviors
Children Services finds concerning has ever been attributed to alcohol or drug abuse.
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{¶68} The situation with respect to housing is more complicated but hardly an
impediment to reunification. From the end of 2018 through June 2019, Henery resided
on Buffalo Street in Conneaut. In March 2019, the children were returned to Henery at
the Conneaut residence. As noted by the majority, Children Services maintained legal
custody although the children were entrusted to Henery full-time.
{¶69} In June 2019, Henery and the children moved to a house owned by a Kelly
Burke on Humphrey Avenue in Ashtabula. The caseworker, Santiago, did not approve of
the Ashtabula residence: “The house was being run by a generator” and there were
“electrical cords running from [the] generator outside into the house” which made her
“very nervous about the children remaining in that home.” Additionally, the caseworker
was concerned about “multiple men in and out of that home.” The caseworker noted that
they were not cooperative in identifying themselves and at least some of them had a
criminal record. No further details were given about these multiple men. Despite these
concerns, the children were allowed to remain with Henery at the Humphrey Avenue
residence.
{¶70} At the caseworker’s urging, Henery agreed to relocate to a place called
Beatitude House. She made arrangements to move there in August 2019. That same
month, the children were again removed from her custody after Children Services learned
that she and the children had stayed at a commercial property on Main Avenue in
Ashtabula where Marshall was living. It is suggested that Henery and the children resided
on Main Avenue but there is little evidence to confirm it. Henery herself admitted she and
the children stayed there for three nights after vacating the Humphrey Avenue residence
and before she could move into the Beatitude House. Beyond this admission, the only
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evidence of an extended residence is that her car was often found parked at the
commercial property. It was also undisputed, however, that Henery and Marshall
operated a business out of this commercial property. The children were never found or
witnessed being at this property.
{¶71} Henery resided at the Beatitude House from November 2019 to about July
2020 when she obtained public housing in Conneaut. Children Services did not have any
issues with the Beatitude House or public housing. To put the evidence in perspective,
Henery has had suitable housing for the children since November 2019, i.e., seven
months prior to the filing of the permanent custody motion and for an additional ten
months until the motion was heard.
{¶72} With respect to her mental health, Henery underwent an assessment early
in the case and was initially compliant with attending counseling. At some point she
missed appointments. The caseworker indicated that there might have been an issue
with insurance. Henery indicated that there have been issues with the turnover of
counselors at Signature Health (she is currently on her fourth counselor). There was an
incident at Easter 2020 when Henery came to the house of the children’s foster parent,
apparently to deliver Easter baskets, and was charged with felony burglary. The case
was diverted to mental health court. There are no current problems with Henery
addressing her mental health issues (primarily adjustment disorder).
{¶73} This is the record on which the majority concludes that “Henery
demonstrated ongoing instability in the areas of employment and income, housing,
substance abuse, and her relationship with Mr. Marshall.” Supra at ¶ 55. The evidence
scarcely supports these claims under a preponderance of the evidence standard, much
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less the clear and convincing evidence standard which must be met before the permanent
termination of parental rights may be considered. In re D.A., 113 Ohio St.3d 88, 2007-
Ohio-1105, 862 N.E.2d 829, ¶ 12-13 (“[b]efore parental rights are terminated and
permanent custody granted to a children services agency, R.C. 2151.414(B)(1) requires
a court to determine ‘by clear and convincing evidence, that it is in the best interest of the
child to grant permanent custody of the child to the agency that filed the motion for
permanent custody and that * * * the child cannot be placed with either of the child’s
parents within a reasonable time or should not be placed with the child’s parents’”).
{¶74} The majority also claims that, “for over two years, Ms. Henery had not
interacted with the children in an unsupervised fashion due to her behavior and actions.”
Supra at ¶ 55. Yet the children were allowed to remain in Henery’s custody for six months
during this period. While Children Services retained legal custody, it is not the case that
the children were under constant supervision. There were visits from the caseworker but
otherwise Henery’s custody was unsupervised. There were concerns with the Humphrey
Avenue residence, but they did not justify the children’s removal. In any case, Henery
voluntarily vacated that residence after a few months. Beyond this, one wonders exactly
what “behavior and actions” by Henery prevented her from enjoying unsupervised
visitation? The nights spent at the commercial property (which has not been an issue
since August 2019)? The Easter incident (despite the magistrate finding “Mother has
been compliant with her mental health needs and currently * * * is actively engaged in
Mental Health Court”)? A single, dubious drug screen (which occurred after the
permanent custody motion was filed)?
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{¶75} What, then, justifies permanent termination of Henery’s parental rights?
That question was asked by the attorney for Children Services of the caseworker: “If
housing is not the issue, what is the issue in your mind?”
The issue is the frequent behavior concerns and irrational behaviors,
and the ongoing fighting, arguments, domestic violence between the
two parties. * * * [D]uring some of my visits with mom * * * I would
speak to mom and halfway through a conversation she would just *
* * get up and walk out of the conversation. She would often say I
need to go take a nap. Just irrational behavior. * * * The other
concerning behaviors was [sic] I tried to explain that the safety factor
of the children being in a home with the multiple men that were
present when I arrived there, and that it’s a safety factor for the
children. And she dismissed it.
Permanent custody hearing transcript at 244. Neither the magistrate nor the majority
cited this testimony in support of the termination of parental rights. If this testimony
accurately reflects the concerns or issues with Henery’s parenting, the motion should not
have been granted.
{¶76} The foregoing is not meant to belittle the efforts of Children Services or to
deny that Henery has benefited from those efforts. It may be that the foster parent can
provide a more stable home or life or financial security for the children. However, these
are not the criteria by which a bonded family unit should be dissolved. There is a serious
lack of “clear and convincing” evidence that Henery is fundamentally unfit as a parent or
unable to care for her children. In the absence of such evidence, I cannot concur in the
decision to permanently terminate her parental rights and, accordingly, I respectfully
dissent.
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