[Cite as In re M.S., 2023-Ohio-3911.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

IN RE: M.S. :

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C.A. No. 29828

Trial Court Case No. G-2020-004207-

0C,0G

(Appeal from Common Pleas CourtJuvenile Division)

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O P I N I O N

Rendered on October 27, 2023

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GARY C. SCHAENGOLD, Attorney for Appellant

 

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Attorney for Appellee

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HUFFMAN, J.

{¶ 1} Mother appeals from the trial court’s judgment terminating her parental rights 

and awarding appellee Montgomery County Children Services (MCCS) permanent 

custody of her minor child.

{¶ 2} Mother argues that the trial court abused its discretion in granting permanent 

custody of her daughter to MCCS, that she had made significant progress on her case 
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plan, and that the agency should have considered seeking a second extension of 

temporary custody to allow additional time for Mother to reunify with the child.

{¶ 3} We conclude that the trial court’s permanent custody findings were supported 

by the requisite clear and convincing evidence. Accordingly, the trial court’s judgment 

will be affirmed.

I. Background

{¶ 4} M.S. was born to Mother in October 2017; her father is unknown. In July 

2020, MCCS became involved with M.S. and her family as a result of a referral related to 

the condition of Mother’s home and a report that Mother left M.S., then two years of age, 

unsupervised for a time. In February 2021, temporary custody of M.S. was granted to 

Maternal Grandmother. In June 2021, another referral was made to MCCS when M.S. 

was found roaming the streets unsupervised, unclothed, without shoes, and wearing only 

a diaper. Maternal Grandmother was later charged with child endangering and, after a 

brief period in which M.S. was placed on a safety plan with a non-relative, in October 

2021, MCCS received interim temporary custody of M.S. MCCS filed a motion for 

permanent custody in February 2022. 

{¶ 5} At an evidentiary hearing on MCCS’s motion for permanent custody of M.S. 

held on September 23, 2022, the only witnesses were the foster mother and the 

caseworker assigned to the family. Mother did not appear at the hearing, although she 

was represented by counsel. Mother did not present any witnesses at the hearing.

{¶ 6} Following the hearing, on May 12, 2023, the trial court awarded MCCS 

permanent custody of M.S., thereby terminating Mother’s parental rights. Mother 
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appeals. 

{¶ 7} A trial court’s decision to terminate parental rights and grant permanent 

custody to an agency of the State must be supported by clear and convincing evidence. 

In re L.C., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. Clear and convincing 

evidence is evidence which will produce in the mind of the trier of fact “a firm belief or 

conviction as to the allegations sought to be established.” Cross v. Ledford, 161 Ohio 

St. 469, 477, 120 N.E.2d 118 (1954). The evidence must be more than a 

preponderance, but it need not rise to the level of certainty that is required beyond a 

reasonable doubt in criminal cases. Id.

{¶ 8} In reviewing a permanent-custody decision, “we apply an abuse-of-discretion 

standard, and we will not disturb such a decision on evidentiary grounds ‘if the record 

contains competent, credible 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 the Matter of T.S., 2017-Ohio-483, 85 N.E.3d 225, ¶ 6 (2d Dist.), 

citing In re L.C. at ¶ 14. The phrase “abuse of discretion” implies a decision which is 

unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983).

{¶ 9} Here, the trial court applied R.C. 2151.414(B), which provides criteria for 

awarding permanent custody, and found by clear and convincing evidence that the child 

could not and should not be placed with Mother in a reasonable time and that Mother had 

abandoned M.S. The trial court also found by clear and convincing evidence that an 

award of permanent custody to MCCS was in the child’s best interest. In making these 
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determinations, the trial court applied R.C. 2151.011(C), which provides that a child shall 

be presumed abandoned when the parents of the child have failed to visit or maintain 

contact with the child for more than 90 days, regardless of whether the parents resume 

contact with the child after that 90-day period. It also applied R.C. 2151.414(E), which 

provides guidelines for determining whether a child can be placed with a parent within a 

reasonable time. Finally, the trial court applied R.C. 2151.414(D), which sets forth 

factors for determining whether an award of permanent custody is in a child’s best 

interest.

{¶ 10} The trial court summarized the evidence presented at the hearing on the 

motion for permanent custody thus:

A case plan was developed for Mother. Mother’s case plan 

objectives included: complete a substance abuse and mental health 

assessment and follow the recommendations; obtain and maintain 

appropriate housing and income; participate in parenting skill education; 

complete a parenting and psychological evaluation; visit with the child 

consistently.

Mother received referrals to multiple providers to complete a 

substance abuse and mental health assessment. Mother engaged in 

services through Mahajan Therapeutics in February 2021 where she was 

diagnosed with major depression and generalized anxiety, and was 

prescribed medication. Mother stopped her treatment in May 2021 and 

was non-compliant with her medication. There is no evidence of Mother 
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engaging in any mental health or substance abuse treatment since May 

2021.

Mother received referrals to multiple housing agencies to assist in 

obtaining housing. Mother was evicted from her housing around 

November 2020. Mother then spent time residing (with) her grandmother. 

Mother obtained her own two bedroom apartment in March 2021. When 

the caseworker last viewed the apartment in October 2021, it was largely 

unfurnished other than Mother’s bed, did not have a bed for the child, and 

did not have any kitchen appliances. Mother has not permitted the Agency 

to conduct any further home visits since that time.

Mother was referred to the Job Center for assistance in finding 

employment. Mother has reported having multiple different jobs including 

working at Kohl’s Distribution, Fuyao, and Smokey Bones. As of 

September 2022, Mother reported that she was unemployed.

Mother was referred to the Agency’s Celebrating Families program 

for parenting education in February 2021. Mother attended one session, 

then did not attend any further sessions. Mother was again referred to the 

Agency’s program in September 2021, but refused to engage. Mother 

reported that she completed an online parenting class during the summer 

of 2022, but did not provide requested verification to the Agency.

Mother signed a release of information in April 2022 so that a 

parenting and psychological evaluation could be completed. Mother had 
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two appointments scheduled in August 2022 to complete the evaluation. 

Mother did not appear for either appointment and did not complete the 

evaluation.

Mother had regular conduct with the child while she was in the care 

of maternal grandmother. After the child went into Agency custody in 

October 2021, Mother only visited with the child at the Agency two times 

between October 2021 and January 2022. Mother then refused to attend

further visits at the Agency, and believed that the Agency should instead 

transport the child to her for visits. Mother visited the child in-person one 

time in January 2022 in the foster mother’s home. Mother has not had any 

further in-person contact with the child since that time. Mother did have 

some virtual contact with the child in August and September 2022.

The court finds that notwithstanding reasonable case planning and 

diligent efforts by the agency to assist Mother to remedy the problems that 

initially caused the child to be placed outside the home, Mother has failed 

continuously and repeatedly to substantially remedy the conditions causing 

the child to be placed outside the child’s home.

{¶ 11} The court found that the child was abandoned, pursuant to R.C. 

2151.011(C), since Mother had not had any contact with the child from February 2022 

through July 2022, and determined that multiple factors existed requiring the court to find 

that M.S. could not or should not be placed with Mother in a reasonable amount of time. 

The court applied R.C. 2151.414(D), which sets forth factors for determining whether an 
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award of permanent custody is in a child’s best interest and evaluated those factors.

{¶ 12} In addressing the statutory best-interest factors that it found applicable, the 

trial court reasoned that the child had been in the home of the foster mother since January 

2022 and was bonded to the foster mother and her adult son. The court found that the 

foster mother was meeting all of the child’s needs, including extensive therapies and 

medical appointments for the child’s special needs, and that Mother had not been 

consistent in her contact with the child since October 2021. Mother had not had any inperson visits with M.S. since January 2022 and had had only limited virtual contact with 

her since July 2022. The court found that M.S. was too young to express her wishes 

and because of her special needs; she was largely non-verbal. The court found that 

M.S. had been placed in the temporary custody of her maternal grandmother in February 

2021 and that she had been in the temporary custody of MCCS since October 2021. The 

court further found that M.S. was in need of a legally secure permanent placement which 

could not be achieved without a grant of permanent custody to MCCS. It found that 

Mother had failed to make significant progress on her case plan objectives, had failed to 

address or engage in mental health or substance abuse services, was not employed, the 

condition of her home was unknown, and she had not consistently visited with M.S. The 

court also found that M.S. was bonded to her foster mother, who was interested in 

adopting her. 

{¶ 13} The trial court concluded:

After consideration of the factors under R.C. 2151.414(D), the Court 

finds that the State presented clear and convincing evidence that a grant of 
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permanent custody to the Agency is in the child’s best interest. Placement 

with either parent is not possible within the reasonably foreseeable future. 

Mother has failed continuously and repeatedly to substantially remedy the 

conditions causing the child to be placed outside the home. The child’s 

father is unknown. The Guardian Ad Litem recommended that permanent 

custody to MCCS is in the child’s best interests. 

{¶ 14} On appeal, Mother argues that she had made significant progress on her 

case plan and that MCCS “should have considered seeking a second extension of 

temporary custody to allow additional time for Mother to reunify with the child with 

protective supervision services.”

{¶ 15} Upon review, we see no error in the trial court’s permanent-custody 

decision. Mother did not appear at the permanent-custody hearing. The record 

contains clear and convincing evidence supporting the trial court’s finding that M.S. could 

not be returned to Mother within a reasonable time, that Mother had abandoned M.S., 

and that an award of permanent custody to MCCS was in the child’s best interest. 

Although Mother had made sporadic progress toward some of the case-plan objectives, 

she lacked consistent and verified employment, was unemployed at the time of the last 

contact with Mother prior to the permanent custody hearing, and she lacked suitable 

housing. While a representative of MCCS was able to view Mother’s home one time, the 

residence lacked furniture to meet the needs of M.S. and there were no appliances in the 

home. Thereafter, Mother refused to permit any representative of MCCS to view her 

residence. Mother failed to engage in mental health or substance abuse services and 
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had not completed the requested parenting program. Mother’s failure to have contact 

with M.S. for a significant period of time formed the basis for the trial court’s abandonment 

finding. M.S. has significant needs relating to speech and occupational therapy resulting 

from a diagnosis of autism that were being addressed by foster mother. 

II. Conclusion

{¶ 16} Based on the reasoning set forth above, we conclude that the trial court’s 

permanent custody findings were supported by the requisite clear and convincing 

evidence. Accordingly, Mother’s assignment of error is overruled.

{¶ 17} The judgment of the Montgomery County Common Pleas Court, Juvenile 

Division, is affirmed.

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EPLEY, J. and LEWIS, J., concur.