[Cite as In re H.L.R., 2021-Ohio-229.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

IN RE: H.L.R. : 

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Appellate Case No. 28894 

Trial Court Case No. 2018-2284 

(Appeal from Common Pleas CourtJuvenile Division) 

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O P I N I O N 

Rendered on the 29th day of January, 2021. 

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MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Appellee, Montgomery County Children Services 

 

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, Beavercreek, 

Ohio 45434 

 Attorney for Appellant, Mother 

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TUCKER, P.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 awarded 

Montgomery County Children Services (“MCCS”) permanent custody of her child, H.L.R. 

Mother contends the juvenile court erred by finding that an award of permanent custody 

was in the child’s best interest. 

{¶ 2} Because a review of the record shows clear and convincing evidence that 

H.L.R. had been in the temporary custody of MCCS for 12 or more months out of a 

consecutive 22-month period and that an award of permanent custody to MCCS was in 

her best interest, we affirm. 

 

I. Facts and Procedural Background 

{¶ 3} H.L.R. was born in May 2011. She was born with hydrocephalus, a condition 

in which excess fluid accumulates in the brain. As a result, H.L.R. has a shunt, or 

drainage tube, which permits drainage of excess fluids from her brain to other areas of 

the body where the fluid can be absorbed. 

{¶ 4} In early 2018, MCCS learned that H.L.R. was missing an excessive amount 

of school. In April 2018, MCCS scheduled a family conference in order to address the 

issue. Mother failed to attend the meeting.1 In May 2018, MCCS filed a complaint 

alleging H.L.R. to be a neglected and dependent child. Temporary custody was awarded 

to MCCS, and H.L.R. was placed in foster care. A case plan was implemented; it 

required Mother to obtain employment and housing, attend visitations with H.L.R., engage 

in mental health treatment including anger management, and submit to drug screens as 

 

1 MCCS was unable to ascertain the identity of H.L.R.’s father. 
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requested. 

{¶ 5} Once she was in foster care, it was determined H.L.R. had significant medical 

and dental problems that Mother had not addressed. Specifically, H.L.R. had been 

referred to a neurologist regarding recurrent headaches, but Mother had failed to take her 

to the appointment.2 Mother also did not take H.L.R. to some of her regularly-scheduled 

yearly neurological examination appointments. Further, vision issues can arise as a 

result of hydrocephalus, yet Mother never took H.L.R. for a vision examination. 

{¶ 6} It was also discovered that H.L.R. suffered from labial adhesions and eczema 

and environmental and food allergies. The record demonstrates Mother had taken 

H.L.R. to the emergency room at Children’s Hospital on five different occasions for 

problems related to the allergies, but she failed to pursue suggested follow-up care. 

While in foster care, H.L.R. was prescribed an Epipen, an inhaler, and Singulair for her 

allergies and a steroid cream for her eczema. H.L.R. now sees a gynecologist regarding 

to the labial adhesions for which she was prescribed treatment. 

{¶ 7} The foster family also discovered that H.L.R. had significant tooth decay; she 

underwent surgery for several tooth extractions and root canal procedures, and she got 

four crowns and four fillings. The record shows that Mother took H.L.R. to a dentist only 

one time, when she was approximately five years old. 

{¶ 8} On June 12, 2019, the juvenile court granted a first extension of temporary 

custody. A magistrate held a permanent custody hearing in December 2019, after which 

the magistrate filed an order terminating Mother’s parental rights and awarding permanent 

custody to MCCS. Mother filed objections, which were overruled, and the juvenile court 

 

2 The record indicates that headaches can indicate a problem with the brain shunt. 
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adopted the magistrate’s order awarding permanent custody to MCCS. 

{¶ 9} Mother appeals. 

II. Analysis 

{¶ 10} Mother asserts the following as her sole assignment of error: 

THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT 

CUSTODY OF THE CHILD TO [MCCS]. 

{¶ 11} Mother asserts that the evidence did not support the finding that awarding 

permanent custody to MCCS was in H.L.R.’s best interest. Her argument focuses 

exclusively on her claim that she had met the goals of her case plan. 

{¶ 12} A juvenile 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. 

{¶ 13} In reviewing a permanent custody decision, “we apply an abuse-ofdiscretion 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-482, 85 N.E.3d 225, ¶ 6 
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(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). 

{¶ 14} R.C. 2151.414(B)(1) establishes the following two-part test for courts to 

apply when determining a motion for permanent custody to a public children services 

agency: 

Except as provided in division (B)(2) of this section, the court may grant 

permanent custody of a child to a movant if the court determines at the 

hearing held pursuant to division (A) of this section, 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 any of the following apply: 

(a) The child is not abandoned or orphaned, has not been in the temporary 

custody of one or more public children services agencies or private child 

placing agencies for twelve or more months of a consecutive twenty-twomonth period, or has not been in the temporary custody of one or more 

public children services agencies or private child placing agencies for twelve 

or more months of a consecutive twenty-two-month period if, as described 

in division (D)(1) of section 2151.413 of the Revised Code, the child was 

previously in the temporary custody of an equivalent agency in another 

state, and 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. 

(b) The child is abandoned. 
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(c) The child is orphaned, and there are no relatives of the child who are 

able to take permanent custody. 

(d) The child has been in the temporary custody of one or more public 

children services agencies or private child placing agencies for twelve or 

more months of a consecutive twenty-two-month period, or the child has 

been in the temporary custody of one or more public children services 

agencies or private child placing agencies for twelve or more months of a 

consecutive twenty-two-month period and, as described in division (D)(1) of 

section 2151.413 of the Revised Code, the child was previously in the 

temporary custody of an equivalent agency in another state. 

(e) The child or another child in the custody of the parent or parents from 

whose custody the child has been removed has been adjudicated an 

abused, neglected, or dependent child on three separate occasions by any 

court in this state or another state. 

{¶ 15} Here the juvenile court made the findings required to award MCCS 

permanent custody. Specifically, the court found that H.L.R. had been in the custody of 

MCCS for 12 or more months of a consecutive 22-month period and found that awarding 

permanent custody to MCCS was in the child's best interest. 

{¶ 16} We note the juvenile court found that H.L.R. could not be placed with Mother 

within a reasonable time or should not be placed be placed with Mother. Because the 

court found by clear and convincing evidence that H.L.R. had been in the temporary 

custody of MCCS for 12 or more months of a consecutive 22-month period, the court 

improperly applied R.C. 2151.414(B)(1)(a); that section specifies that it is not applicable 
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in cases where the child has been in the temporary custody of one or more public children 

services agencies or private child placing agencies for 12 or more months of a 

consecutive 22-month period. In other words, “[t]he plain language of R.C. 

2151.414(B)(1)(a) reveals that the subsection is only triggered when none of the 

remaining three subsections are triggered.” In re H.D., 10th Dist. Franklin No. 13AP707, 2014-Ohio-228, ¶ 13, quoting In re Damron, 10th Dist. Franklin No. 03AP-419, 2003-

Ohio-5810, ¶ 9. Nevertheless, we find any error harmless because the court's decision 

reflected it had considered R.C. 2151.414(B)(1)(a) in the alternative while also making its 

finding under R.C. 2151.414(B)(1)(d). 

{¶ 17} On appeal, Mother does not dispute the juvenile court's finding that R.H. 

had been in the temporary custody of MCCS for 12 or more months of a consecutive 22-

month period. Instead, she argues that she had complied with her case plan, and 

therefore the juvenile court’s decision regarding H.L.R.’s best interest was against the 

weight of the evidence. 

{¶ 18} Upon review, we find Mother's argument to be unpersuasive. The record 

supported the conclusions that Mother failed to obtain housing and also failed to attend 

her mental health counseling; thus, she failed to complete at least two of the requirements 

set forth in her case plan. Further, even if we were to find that she had substantially 

satisfied her case plan objectives, such a finding would not be dispositive of the bestinterest determination. In re T.D., 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. 

This court has recognized that, “[w]hen the focus is on the child's best interest, a trial 

court conceivably could terminate parental rights even if a parent completed all of her 

case-plan objectives.” (Citation omitted.) Id. 
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{¶ 19} Regarding H.L.R.’s interaction with significant others, the record 

demonstrated that she was bonded to Mother and that visits between the two generally 

went well. However, H.L.R. was also bonded to her foster family, which included one of 

her biological siblings. While H.L.R. had expressed a desire to live with Mother, she had 

also expressed that she was happy and comfortable with her foster family. 

{¶ 20} Regarding H.L.R.’s custodial history and her need for a legally secure 

placement, we note that the child had been with her foster family since July 2018. 

Further, MCCS had been involved with the family since 2017, when H.L.R.’s younger 

sibling was discovered to be suffering from medical neglect. Mother failed to complete 

her case plan concerning the sibling, and her parental rights were ultimately terminated. 

Two other siblings lived with their paternal grandmother rather than with Mother. 

{¶ 21} While Mother had completed parts of her case plan, she had failed to secure 

adequate housing. Further, she quit therapy and indicated she did not believe there was 

any reason to continue such therapy. The record also demonstrated an ongoing issue 

with Mother’s anger, which had been directed to the foster parents and MCCS 

caseworkers. 

{¶ 22} Further, Mother was unwavering in her insistence she had never neglected 

H.L.R. But the record unequivocally established she failed to attend to H.L.R.’s medical 

needs and that she allowed H.L.R. to miss an excessive amount of school. 

{¶ 23} The record showed that the foster family had been attentive to H.L.R.’s 

needs. After she was placed in foster care, she began to regularly attend school but was 

significantly behind her peers. The foster parents worked with the teachers, and H.L.R. 

was placed on an I.E.P. and began to receive specialized services at school. She had 
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improved significantly since her foster placement. And, as previously stated, her medical 

needs were being met by the foster family. Finally, the foster family wished to adopt 

H.L.R. 

{¶ 24} As noted, R.C. 2151.414(E)(11) also applied in this case, as Mother had 

had her parental rights terminated with regard to H.L.R.’s younger sibling and had failed 

to present evidence that, notwithstanding the termination, she was capable of providing 

a legally secure placement for H.L.R. Indeed, there was evidence that during visitations, 

Mother instructed H.L.R. not to comply with the treatment for her labial adhesions. 

Mother also continued to give the child chewing gum, despite being instructed not to do 

so in light of H.L.R.’s dental issues. 

{¶ 25} On this record, the juvenile court did not err in terminating Mother’s parental 

rights and awarding permanent custody to MCCS; there was clear and convincing 

evidence that H.L.R. had been in the temporary custody of MCCS for more than 12 

months of a 22-month period and that an award of permanent custody was in the child’s 

best interest. 

{¶ 26} The sole assignment of error is overruled. 

III. Conclusion 

{¶ 27} Mother’s assignment of error being overruled, the judgment of the juvenile 

court is affirmed. 

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HALL, J. and WELBAUM, J., concur. 
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Copies sent to: 

Mathias H. Heck, Jr. 

Sarah E. Hutnik 

Robert Alan Brenner 

Sara Barry 

Hon. Helen Wallace