[Cite as In re M.S. , 2021-Ohio-2331.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

IN THE MATTER OF: M.S., B.S., J.S. : : : : : : : : : : Appellate Case Nos. 2021-CA-12 2021-CA-13 2021-CA-14

Trial Court Case Nos. 2014-157 2014-158 2019-547 (Appeal from Common Pleas Court

– Juvenile Division )

. . . . . . . . . . . O P I N I O N Rendered on the 9th day of July, 2021.

. . . . . . . . . . . IAN A. RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecutin g Attorney, Clark County Prosecutor’s Office, Appellate Division, 50 East Columbi a Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee, CCDJFS GARY C. SCHAENGOLD, Atty. Reg. No. 0007144, 4 East Schantz Aven ue, Dayton, Ohio 45409 Attorney for Mother

. . . . . . . . . . . . . DONOVAN, J.-2- {¶ 1} Appellant Mother appeals from judgments of the Clark County Cou rt of Common Pleas, Juvenile Division, which terminated her parental rights with respect to her children, M.S., B.S., and J.S. and ordered that the childre n be placed in the permanent custody of the Clark County Department of Job and Family Servic es (“CCDJFS”). Mother filed a timely notice of appeal on February 16, 2021. 1 {¶ 2} The minor children were born to Mother and Father in November 2 012 (J.S.), January 2014 (B.S.), and February 2018 (M.S.). CCDJFS initiall y became involved with Mother in early 2014 when B.S. tested positive for heroin at bi rth. On February 11, 2014, CCDJFS filed a complaint in the trial court requesting that it find J.S. and B.S. to be dependent children. Thereafter, J.S. and B.S. were adjudicated dependent; on February 25, 2014, the parties filed an Agreed Entry for Protective Supe rvision for the children, and on February 27, 2014, the trial court granted an ex parte order placing J.S. and B.S. in the custody of CCDJFS. On March 19, 2014, the trial court file d a judgment entry granting temporary custody of J.S. and B.S. to CCDJFS. {¶ 3} In October 2014, J.S. and B.S. were returned to the legal custo dy of Mother and Father with an order of protective supervision. In January 2015, the trial court found Mother in contempt for abusing drugs not prescribed to her in v iolation of her case plan objectives. The trial court then extended the protective order of supervision for J.S. and B.S. for an additional period of six months in April 2015. On July 22, 2015, the trial court terminated the order of protective supervision with respect to J.S. and B.S. {¶ 4} Approximately four years later , on July 8, 2019, CCDJFS filed a complaint

1 At the time of these proceedings, the father of the children w as deceased and therefore had no involvement in the case.-3- and a request for shelter care for J.S. and B.S., as well as th e recently born third child, M.S. Specifically, CCDJFS becam e aware that Mother had been sm oking and injecting methamphetamine. The trial court granted the request for shelt er care for all three children in an entry filed the same day. The record establishe s that Mother agreed to the adjudication of dependency for each of the three children. On September 4, 2019, temporary custody of the three children was awarded to a foster family. On November 19, 2019, CCDJFS filed a motion to modify the temporary custody of the children. In response to the motion, the trial court placed all three childr en in the interim temporary custody of CCDJFS, and on January 17, 2020, the trial court pla ced the children in the temporary legal custody of CCDJFS. {¶ 5} In May 2020, CCDJFS filed a motion to extend temporary custody of the

children for another six months in order to allow Mother to com plete her case plan objectives. On July 15, 2020, the guardian ad litem (GAL) file d a motion requesting that permanent custody of the children be awarded to CCDJFS. A hear ing was held before a magistrate with respect to the GAL’s motion August 7 and 10, 2020. On October 8, 2020, the magistrate denied CCDJFS’s motion to extend temporary custody, granted the GAL’s motion, and ordered that J.S., B.S., and M.S. be placed i n the permanent custody

of CCDJFS. {¶ 6} Mother filed objections to the magistrate’s decision, and she f iled supplemental objections after receipt of the transcript of the hearing before the magistrate. On January 21, 2021, the trial court overruled Mot her’s objections and adopted the magistrate’s decision in its entirety, thereby gran ting permanent custody of the children to CCDJFS and terminating Mother’s parental rights in each case.-4- {¶ 7} Mother now appeals. Her sole assignment of error is as follows : THE TRIAL COURT ERRED IN GRANTING THE MOTION OF THE

GUARDIAN AD LITEM FOR PERMANENT CUSTODY AND DENYING

THE MOTION OF FAMILY AND CHI LDREN’S SERVICES OF CLARK

COUNTY FOR A FIRST EXTENSION OF TEMPORARY CUSTODY. {¶ 8} Mother contends that the trial court erred when it granted the GAL’s motion for permanent custody and denied CCDJFS’s motion for a first ex tension of temporary custody of J.S., B.S., and M.S. We note that while CCDJFS init ially supported an extension of temporary custody at the hearing before the magist rate, it now argues on appeal that it is in the best interest of the children for them to remain in the permanent custody of CCDJFS. {¶ 9} The United States Supreme Court has described the interest of p arents in the care, custody, and control of their children as “perhaps th e oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). The Ohio Supreme Court has recogn ized that “there is an essential and basic civil right to conceive and raise children. ” In re K.H ., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 39. However, “[t]he fun damental interest of parents is not absolute.” In re D.A ., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. “The state has broad authority to intervene to protect c hildren from abuse and neglect.” State ex rel. Allen Cty. Children Servs. Bd. v. Mercer Cty. Common Pleas Court , Prob. Div., 150 Ohio St.3d 230, 2016-Ohio-7382, 81 N.E.3d 380 ¶ 58 (O'Conn or, C.J., dissenting), citing In re C.F ., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. {¶ 10} A court's decision to terminate parental rights will not be ove rturned “if the-5- 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.” (Citations omitted.) In re A.U ., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. “We review the trial court's judgm ent for an abuse of

discretion.” In re L.C ., 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14, citing In re

C.F. at ¶ 48 (applying the abuse-of-discretion standard to trial co urt's findings under R.C. 2151.414). {¶ 11} A two-part test applies to determine whether to grant a public children services agency's motion for permanent custody. R.C. 2151.414(B )(1) provides that a court may grant permanent custody if it clearly and convincingl y finds that (1) the child's best interest lies in granting permanent custody to the agency, and (2) any of the statutory alternatives apply. {¶ 12} R.C. 2151.414 provides in relevant part as follows: (B)(1) Except as provided in division (B)(2) of this section, t he court may grant permanent custody of a child to a movant if the court det ermines at the hearing held pursuant to division (A) of this section, by c lear and convincing evidence, that it is in the best interest of the chi ld to grant permanent custody of the child to the agency that filed the mot ion 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 pri vate child placing agencies for twelve or more months of a consecutive twe nty-twomonth period, or has not been in the temporary custody of one o r more-6- public children services agencies or private child placing agen cies 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 pare nts. {¶ 13} In determining a child's best interest, R.C. 2151.414 instructs courts to consider “all relevant factors,” including five statutory facto rs: (a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers, out-of-home providers, and any other person who may significantly affect the child; (b) The 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; (c) The custodial history of the child * * *; (d) The child's need for a legally secure permanent placement a nd whether that type of placement can be achieved without a grant of perma nent custody to the agency; (e) Whether any of the factors in divisions (E)(7) to (11) of t his section apply in relation to the parents and child. R.C. 2151.414(D)(1). “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, at ¶ 57. {¶ 14} R.C. 2151.414(E) further provides: (E) In determining at a hearing held pursuant to division (A) o f this section-7- or for the purposes of division (A)(4) of section 2151.353 of t he Revised Code whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the pare nts, the court shall consider all relevant evidence. If the court determines, by clear and convincing evidence, at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) of section 2151. 353 of the Revised Code that one or more of the following exist as to each of the child's parents, the court shall enter a finding that the child cannot be placed with either parent within a reasonable time or should not be placed with either parent: (1) Following the placement of the child outside the child's ho me and notwithstanding reasonable case planning and diligent efforts b y the agency to assist the parents to remedy the problems that initially cau sed the child to be placed outside the home, the parent has failed continuous ly and repeatedly to substantially remedy the conditions causing the c hild to be placed outside the child's home. In determining whether the par ents have substantially remedied those conditions, the court shall consid er parental utilization of medical, psychiatr ic, psychological, and other s ocial and

rehabilitative services and materi al resources that were made a vailable to the parents for the purpose of changing parental conduct to all ow them to resume and maintain parental duties. {¶ 15} As previously stated, J.S. and B.S. were removed from Mother’s custody in 2014 because of her drug use, and all three children were remov ed from Mother’s custody-8- again in 2019 because of her use of illegal drugs. Additionall y, at the time of the permanent custody hearing, the children had been in the tempora ry custody of CCDJFS for approximately 13 consecutive months. {¶ 16} In 2019, CCDJFS developed a reunification case plan for Mother with the following objectives: 1) maintain safe and stable housing; 2) h ave a drug and alcohol assessment completed and follow all recommendations; 3) screen negative for all substances; 4) sign releases of information so that CCDJFS coul d speak with her providers; 5) have a mental health assessment and follow all re commendations; 6) obtain and maintain employment and refrain from violent relationships; 7) participate in Family Treatment Court; and 8) complete a parenting psychological exam

. {¶ 17} As found by the trial court, the record established that Mother failed to obtain safe and stable housing that would pass a home study. Addition ally, after being found in possession of methamphetamine and drug paraphernalia, Mother was incarcerated from the summer of 2019 until February 11, 2020, when she enter ed the inpatient program at McKinley Hall, where she remained until March 13, 2020. The record established that Mother had completed a drug and alcohol assessment and followed through with the

recommendations for treatment. Mother was also enrolled in Fam ily Treatment Court in March 2020, and she advanced from Phase I to Phase II in June 2 020. However, Mother was placed back into Phase I in July 2020 in light of her use o f a drug not legally prescribed to her, gabapentin. Furthermore, Mother missed two weeks of Family Treatment Court because of an injury which she alleged occurred while she was at work, but she failed to provide any documentation to support her inju ry claim at the permanent custody hearing. The record established that Mother was able t o gain employment, but-9- was unable to maintain said employment. {¶ 18} The record also established that Mother had not had any contact with the children for many months. With respect to their current living arrangement, the trial court

found that all three children were bonded with their foster fam ily, and J.S. possessed sufficient maturity to express his wish to remain with his fost er parents. The trial court also found that the children were adjusting well to their livin g situation and were not exhibiting any behavioral issues, and their foster family was c ommitted to finalizing permanent adoption of the children. Additionally, the trial co urt found that the children’s relationship with Mother was strained because of her ongoing dr ug use and domestic violence in the household, and CCDJFS was concerned with Mother ’s illegal use of gabapentin and her potential for relapse. The trial court also noted that the children had been in their current foster placement since November 2019, app roximately 13 months. Thus, at the time of the permanent custody hearing, the childre n had been out of Mother’s custody for more than 12 of the last 22 months. {¶ 19} With respect to Mother’s drug use, the trial court found and th e record established that it had been an ongoing issue since 2014, when J.S. and B.S. were removed from her custody after B.S. tested positive for heroin a birth. Additionally, Mother failed to report her use of gabapentin without a prescri ption for several months, lied about it to CCDJFS when initially confronted, and then con tinued to test positive for the drug five more times after disclosure. Mother argues that the trial court gave too much weight to her illegal use of gabapentin, describing it as “Mother’s only sin.” Appellant’s Brief, p. 8. Specifically, Mother points out that gabapentin is not an illegal substance. However, several Ohio courts have taken into accoun t an individual’s use of-10- gabapentin when terminating parental rights because the drug is “commonly abused by opiate addicts or people with an opiate abuse problem in lieu o f the individual's available opiate.” See In re J.P. , 8th Dist. Cuyahoga No. 107849, 2019-Ohio-1657, ¶ 22. Furthermore, Dr. Laura Kaplan , a licensed clinical psychologist who evaluated Mother, testified at the permanent custody hearing that she was concern ed regarding the potential for future drug abuse by Mother and also a lack of accountabili ty with respect to her failure to divulge her use of drugs not prescribed to her. Accordingly , we find that the trial court did not place too much weight on Mother’s non-prescribed use of gabapentin. {¶ 20} In sum, the record established that CCDJFS made every effort to reunite Mother with the children. Mother's failure to complete the cas e plan, however, established that she was either unwilling or incapable of adequ ately caring for the children. Although Mother made some effort to complete her cas e plan objectives, the record established that she failed to provide the children with safe and stable housing, failed to maintain stable employment, and regressed in Family T reatment because of her non-prescribed use of gabapentin. Therefore, we find that the trial court did not err when it found that clear and convincing evidence was adduced at the permanent custody hearing which supported an award of permanent custody of the ch ildren to CCDJFS and the termination of Mother's parental rights. {¶ 21} Mother’s sole assignment of error is overruled. {¶ 22} Mother’s assignment of error having been overruled, the judgmen t of the

trial court in each case is affirmed.

. . . . . . . . . . . . .-11- HALL, J. and EPLEY, J., concur.

Copies sent to:

Ian A. Richardson Gary C. Schaengold Hon. Katrine Lancaster