21AP-631 21AP-632

2022 Ohio 3627

Opinion

[Cite as 21AP-631; 21AP-632, 2022-Ohio-3627.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

[In re A.M., :

O.A., : No. 21AP-631 Appellant.] (C.P.C. No. 19JU-3035) : (REGULAR CALENDAR) [In re S.M., : No. 21AP-632 OA., : (C.P.C. No. 19JU-3052)

Appellant.] : (REGULAR CALENDAR)

D E C I S I O N

Rendered on October 11, 2022

On brief: William T. Cramer, for appellant O.A.

On brief: Sharon K. Carney, for appellee Franklin County Children Services.

On brief: Campbell Law, LLC, and April F. Campbell, for appellees A.M. and S.M.

APPEALS from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch

BEATTY BLUNT, J.

{¶ 1} Mother, O.A., appeals the October 28, 2021 judgments of the Franklin

County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, granting

the May 8, 2020 motions filed by defendant-appellee, Franklin County Children Services

(the "Agency"), terminating her parental rights regarding the minor children A.M. (dob

06/10/2017) and S.M. (dob 05/10/2018) and awarding permanent custody to the Agency.

She asserts a single assignment of error with the trial court's judgment, and contends that Nos. 21AP-631 and 21AP-632 2

"[t]he weight of the evidence does not support the termination of appellant's parental rights

as to the children and award of permanent custody of the children to the agency."

{¶ 2} A.M. was born to Mother O.A. and Father C.M. on June 10, 2017, and S.M.

was born to Mother O.A. and Father C.M. on May 10, 2018. An older brother, P.J.M., was

placed in the legal custody of foster parents on May 25, 2017, and another older sibling,

J.A., was placed in the legal custody of the maternal grandmother on September 14, 2015.

Accordingly, the Agency has been involved with the family for some time. Relevant to the

current motions, the family began working with the Agency when S.M. was born

prematurely, as she tested positive for cocaine and marijuana at that time. The Agency

received a temporary order of emergency custody for A.M. and S.M. in September 2018 and

the children were placed in a foster home in December 2018. The case was dismissed and

refiled twice, but the children remained in the custody of the Agency and in the same foster

home placement throughout. Following a June 5, 2019 hearing, Mother admitted to a

finding of dependency as to A.M. and a finding of abuse as to S.M. The trial court ordered

that both children be placed in the temporary court custody of the Agency, the court further

adopted case plans for both children with requirements for Mother and Father and the goal

of reunification. A first extension of temporary custody as to both children was ordered on

December 17, 2019.

{¶ 3} The Agency filed motions for permanent custody of both children on May 8,

2020. The motions were tried on February 17, and August 23, 2021. Mother did not appear

on either date, and Father did not appear on the second and final trial date. On August 24,

2021, the Agency's counsel submitted proposed findings of fact and conclusions of law to

the trial court, and on October 28, 2021, the trial court issued its order granting both

motions. (See generally Jgmt. Entry Granting Permanent Custody.) Nos. 21AP-631 and 21AP-632 3

{¶ 4} The case plan, as adopted by the court, required Mother to: (1) provide for

the children's basic, safety, and protective needs; (2) complete an alcohol and drug

assessment and follow recommendations therefrom; (3) complete random drug screens;

(4) maintain stable housing and employment; (5) maintain open communication with the

Agency; and (6) make herself and the children available to the caseworker on a monthly

basis for the life of the case. Id. at 16. Based on the testimony of the caseworker and other

evidence presented at trial, the trial court found that mother had failed to comply with each

of those case plan requirements. Id. at 17-19. Father's compliance with his case plan

objectives was somewhat better, but the court ultimately concluded that he failed to

complete a required domestic violence assessment and follow recommendations

therefrom, he failed to comply with the court's order to complete random drug screens, he

failed to complete the recommended alcohol and drug recommendations as ordered, and

he failed to make himself available to the caseworker as ordered. Id. at 19-25.

{¶ 5} The court also found Mother either attempted to attend or attended most

visits prior to October 6, 2020, but that she was arrested following a visit on that date and

has not visited the children in person since that time, although she has spoken to them on

the phone during Father's intermittent visits. Similarly, at the time of trial Father had

missed numerous visits, and on the last day of trial Father had not visited with the children

for over one month.

{¶ 6} A trial court's determination in a permanent custody case will not be reversed

on appeal unless it is against the manifest weight of the evidence. Judgments are not

against the manifest weight of the evidence when all material elements are supported by

competent, credible evidence. Accordingly, an appellate court will not overturn a

permanent custody order when it is supported by competent, credible evidence. Further, Nos. 21AP-631 and 21AP-632 4

in reviewing a judgment granting permanent custody to the Agency under the manifest

weight standard, an appellate court must make every reasonable presumption in favor of

the judgment and the trial court's findings of facts. If the evidence is susceptible of more

than one construction, the court of appeals must give it that interpretation which is

consistent with the verdict and judgment, most favorable to sustaining the juvenile court's

verdict and judgment. See generally In re J.W., 10th Dist. No. 19AP-122, 2019-Ohio-4775,

¶ 21. (Citations and quotations omitted.)

{¶ 7} Moreover, parents have a constitutionally protected fundamental interest in

the care, custody, and management of their children. But parental rights are not absolute,

and a parent's natural rights are always subject to the ultimate welfare of the child.

Accordingly, the state may terminate the parental rights of natural parents, but such

termination must be in the best interest of the child. (Citations and quotations omitted.)

See generally id. at ¶ 22. R.C. 2151.413 authorizes a public children services agency to file

a motion requesting permanent custody of a child for which it has temporary custody, and

when the child has been in the temporary custody of a public agency for 12 or more months

out of a consecutive 22-month period, the agency is required to file a permanent custody

motion. R.C. 2151.413(D)(1), cited in J.W. at ¶ 23. R.C. 2151.414(B)(1) permits a court to

grant permanent custody of a child to a public agency if, after a hearing, it determines by

clear and convincing evidence, that "(1) any of the circumstances in R.C. 2151.414(B)(1)(a)

through (d) exist, and (2) such relief is in the best interest of the child." In re K.M., 10th

Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 14. "Clear and convincing evidence" is "more than a

mere preponderance of the evidence but does not require proof beyond a reasonable

doubt." J.W. at ¶ 23, quoting In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 14.

Rather, it means evidence that produces a firm belief or conviction as to the facts sought to Nos. 21AP-631 and 21AP-632 5

be established. In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, citing Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

{¶ 8} Thus, "[a] decision to award permanent custody requires the trial court to

take a two-step approach." K.L., at ¶ 18. "First, a trial court must determine if any of the

factors set forth in R.C. 2151.414(B)(1) apply," and second, the court determines whether

granting permanent custody to the Agency is in the best interest of the child. Id. at ¶ 18-20.

Relevant to this appeal, R.C. 2151.414(B)(1) provides the following circumstances under

which the Agency is authorized to file a motion for permanent custody:

(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-two-month 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.

***

(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 * * *.

Once it is established that one of the R.C. 2151.414(B)(1) circumstances is met, a trial court

ruling on a motion for permanent custody must determine whether permanent custody is

in the best interest of the child. R.C. 2151.414(D)(1)(a) through (e) set forth the relevant

factors that the court must consider in determining what is in the best interests of the child,

and all of these factors are of equal importance under the statute. In re Schaefer, 111 Ohio

St.3d 498, 2006-Ohio-5513, ¶ 56. Nos. 21AP-631 and 21AP-632 6

(a) The 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;

(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, including whether 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 * * *;

(d) 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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414(D)(1)

{¶ 9} Here, the trial court concluded that under the first part of the permanent

custody test and pursuant to R.C. 2151.414(B)(1)(a), the evidence established that both A.M.

and S.M. "have been in the Agency's custody for 12 or more months [and therefore the

Agency] need not also prove that the Children could not or should not be placed with any

of the parents within a reasonable time or that the Children were abandoned." (Jgmt. Entry

Granting Permanent Custody at 32.) We can find no fault in this conclusion, and Mother

does not contest it on appeal.

{¶ 10} Accordingly, we move on to the second part of the permanent custody test,

the best interest factors. And pursuant to R.C. 2151.414(D)(1), the court found the

following:

Interaction and Interrelationship - Caseworker [L] and the GAL testified that [A.M.] and [S.M.] are bonded to Mother and Father. The Children have had some interaction with some of their siblings and other relatives during visits with Mother and Nos. 21AP-631 and 21AP-632 7

Father. The Children are also bonded to one another. [A.M.] and [S.M.] have been placed in their current foster home since December of 2018. The Children are most bonded to their foster mother. The Children and the foster mother demonstrate love for each other, the foster mother teaches and engages the Children at an age-appropriate level and the Children are comfortable with their foster mother. The foster mother wishes to adopt the children.

The Children's Wishes - The Court finds by clear and convincing evidence that the wishes of [A.M.] and [S.M.] have not been expressed directly by the Children or by their counsel. As of the conclusion of the trial, [A.M.] is 4 years old and [S.M.] is 3 years old.

Counsel for Father requested that the Court appoint counsel for the Children based on Father's belief that the Children wished to reunify with him, in conflict with the GAL's recommendation for PCC. Attorney Erik Stewart was appointed after the first day of trial. Mr. Stewart requested and received a trial transcript of the initial day of trial and stated on the record that he had an opportunity to review that transcript and meet with the Children. Mr. Stewart indicated that the Children are too young to express their wishes, but he did not feel that they would object to PCC. He was able to ascertain that the Children have a positive relationship with Father and are exceptionally bonded to their foster mother. Attorney Stewart did not oppose PCC. The GAL recommended that the motions for PCC be granted.

Custodial History - The Court finds by clear and convincing evidence that the Children have been in the temporary custody of one or more public children services agencies or private child placing agencies more than 12 months as of trial. The motions for permanent custody were filed on May 8, 2020 and do assert that the Children had been in agency custody for more than 12 months of a consecutive 22-month period as of the time the motions were filed. The Children have remained in the same foster home since their removal on December 19, 2018.

Need for a Legally Secure Permanent Placement - The Court finds by clear and convincing evidence that [A.M.] and [S.M.] are in need of a legally secure permanent placement and that this cannot be achieved without a grant of permanent custody to the Agency. No parent has sufficiently resolved the issues leading to removal to reunify with the Children. The Children have no special needs. The Children are placed together in one foster home and the foster mother wishes to adopt both [A.M.] Nos. 21AP-631 and 21AP-632 8

and [S.M.] There are no relatives available for placement. Caseworker [L.] recommended that the Agency's motions for permanent custody of the Children be granted.

The Court observed Father's testimony on February 17, 2021 and determined that additional time should be allotted to give him a meaningful chance to demonstrate sobriety and his parenting skills during home visits with the Children. Unfortunately, this opportunity did not result in Father's deliberate completion of all outstanding case plan objectives. Father actually moved farther away from case plan completion, based on his drug screen absences and positive results and his missed visitation, as time passed between the first day of trial on February 17, 2021 and the final day of trial on August 23, 2021. Father did not appear for the final day of trial and offered no explanation through counsel. Further, since Mother did not appear for either day of trial or several status conferences in between, and her whereabouts are currently unknown, she also has not moved close to case plan completion. It is unreasonable to expect that either parent will be willing and able to reunify with the Children within any reasonable time since so little has been achieved during the past 32 months that these Children have lived in foster care.

(E)(7) to (11) Factors - While some evidence of abandonment (E)(10) was presented, this was not expressly included in the Agency's motions for permanent custody. Given the adequacy of all other best interest factors to support the conclusion that permanent custody is in the best interest of the Children, the Court need not determine if abandonment was established.

Id. at 29-31.

{¶ 11} In her appeal, Mother does not object to any of the court's factfinding, its

conclusions that she failed to complete her case plan objectives, or that she has failed to

visit with the children since her arrest a year earlier. Instead, Mother simply argues that

she should be given more time to complete her case plan objectives, because she "is clearly

struggling with a drug problem" and "could be successful if given enough time." (Brief of

Appellant at 23.) Nos. 21AP-631 and 21AP-632 9

{¶ 12} Unfortunately, more time to resolve her issues is exactly what Mother does

not have. A.M. and S.M. have been in the care of the Agency for over three and one-half

years at the time of this writing, and were in custody for nearly three years at the time the

trial concluded. Under Ohio law, a county children services agency is generally required to

seek permanent custody once a child has been in its custody for 12 of the preceding 22-

months. R.C. 2151.413(D)(1). And once it is proven that the child has been in custody for

that period, absent some extraordinary circumstance the only remaining question for the

court to consider is whether a grant of permanent custody is in the best interest of the child.

Here, based on factual findings that Mother does not contest, the trial court concluded "the

best option for [A.M.] and [S.M.] to have full lives is that they be adopted, and that granting

the motions for permanent custody is in their best interest." (Jgmt. Entry Granting

Permanent Custody at 31.) The trial court therefore determined that "the Agency has

presented clear and convincing evidence that prove the statutory basis for the 'two prongs

of the permanent custody test,' " and accordingly granted both motions for permanent

custody. Id. at 32. We can find no error in that determination, particularly given Mother's

lack of participation in the proceedings below and the uncontested strength of the bond

between the children and their foster mother.

{¶ 13} For these reasons, we overrule Mother's single assignment of error and affirm

the judgments of the Franklin County Court of Common Pleas, Division of Domestic

Relations, Juvenile Branch granting the Agency's motions for permanent custody in both

cases.

Judgments affirmed. DORRIAN and JAMISON, JJ., concur.