In re A.M.

2019 Ohio 4466

Opinion

[Cite as In re A.M., 2019-Ohio-4466.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE A.M. : : No. 108405 A Minor Child : : [Appeal By R.M., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: October 31, 2019

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. AD-18903215

Appearances:

Christina M. Joliat, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Laura M. Brewster, Assistant Prosecuting Attorney, for appellees.

ANITA LASTER MAYS, J.:

Appellant R.M., mother of minor child A.M., appeals the juvenile

court’s award of permanent custody to the Cuyahoga County Department of

Children and Family Services (“CCDCFS”). As required by App.R. 11.1(D), this court

has expedited the hearing and disposition of this appeal. We affirm. I. History and Facts

A.M. was born in August 2015, to R.M. (hereinafter referred to as

“Mother”) and father C.M. (hereinafter referred to as “Father”). Mother tested

positive for cocaine during the pregnancy and suffered from mental health issues.

Father also suffered from substance abuse issues. CCDCFS became involved with

the family at A.M.’s birth but was already familiar with Mother whose three other

children were removed from her custody due to substance abuse.1

The agency requested protective supervision of A.M. in November

2016, but an event transpired that triggered a filing for emergency temporary

custody to CCDCFS. On April 18, 2017, A.M. was adjudicated to be a neglected and

dependent child under R.C. 2151.03(A)(2) and 2151.04(D) and was committed to the

agency’s temporary custody due to Mother’s substance abuse issues. A.M. was

placed with foster parents and reunited with Mother in December 2017 with an

order of protective supervision by the agency.

Mother relapsed again and in March 2018, A.M. was returned to the

foster parents. On March 9, 2018, CCDCFS filed a complaint for neglect,

dependency, and permanent custody of A.M. pursuant to R.C. 2151.03(A)(2) and

2151.04(D). On March 12, 2018, CCDCFS moved for predispositional temporary

custody of then two-year-old A.M. and requested a full hearing. The agency argued

that A.M. was in immediate danger from his surroundings, and that removal was

necessary to prevent immediate or threatened physical or emotional harm.

1 A.M.’s younger sibling, born in 2016, was voluntarily placed for adoption. At the March 12, 2018 hearing for predispositional temporary

emergency custody of A.M., Mother and CCDCFS, the only attendees, appeared with

counsel. Mother stipulated to a finding of probable cause and denied the complaint

allegations. On April 3, 2018, the trial court granted emergency temporary custody.

On August 22, 2018, an amended complaint for neglect, dependency,

and permanent custody of A.M., a neglected child under R.C. 2151.03(A)(2) and

2151.04(D) was filed. At the hearing, Mother admitted to the amendments and the

trial court determined for the second time that A.M. was neglected and dependent.

Father filed a motion for legal custody on October 17, 2018, one week

before the full custody hearing on October 24, 2018.

A. October 24, 2019 Dispositional Hearing

1. Social Worker

CCDCFS social worker Tracy Digney (“Digney”) has handled A.M.’s

case since the birth. The agency was contacted by the hospital because Mother

tested positive for cocaine during the pregnancy.

Digney met with Mother and Father at the hospital. Father is the

biological father of A.M. and Mother’s other children. The couple had been married

for more than 15 years and divorced in 2017. Digney allowed A.M. to remain with

Mother who was living in sober housing and participating in counseling, drug abuse

programs, and drug court. Father was living separately and was involved in sobriety

support for his substance abuse issues. The couple relapsed in fall of 2015 and failed to comply with the

agency’s random drug screen requests during the summer of 2016 though Mother

continued to participate in substance abuse and mental health counseling. Mother

and Father, who had a history of physical altercations, began living together again

in 2016. In November 2016, the trial court granted the agency’s request for

protective supervision of A.M. after an October 2016 domestic violence incident that

resulted in a guilty plea by Father.

A.M. was not removed from the home because of Mother’s continued

participation in counseling and treatment. However, in February 2017, Mother left

A.M. with a friend at Mother’s apartment. The friend left A.M. with a third-party

when Mother could not be located. Police notified CCDCFS. Father was

incarcerated and there were no relatives to care for A.M. CCDCFS placed A.M. in

foster care with foster parents K.H. and L.H.

Mother reentered treatment at the hospital treatment program that

she had just completed. Mother developed a good relationship with the foster

parents and A.M. was reunified with Mother in December 2017. Mother missed

several agency and counseling appointments and admitted to a relapse in February

2018. Since A.M. appeared to be well-cared for, CCDCFS opted to involve the drug

court and allowed A.M. to remain with Mother. The protective supervision order

was still in effect.

In March 2018, Mother left A.M. in their apartment with a sleeping

boyfriend while she went to purchase crack cocaine. Mother did not return, and the boyfriend left A.M. in the apartment. A.M. found his way to a neighbor’s apartment

who called the police. The agency’s 696-KIDS children’s protection hotline was

contacted. Mother pleaded guilty to endangering children and to a grand theft

charge for taking the boyfriend’s vehicle without permission.

The agency filed a complaint for neglect, dependency, and permanent

custody in March 2018 and A.M. was returned to the foster couple. CCDCFS

requested that Mother contact her father, brother, and sister to assume custody of

A.M., but Mother’s father advised the agency that there was no one to care for A.M.

Mother was still engaged in drug and mental health counseling and was still engaged

in the hospital counseling program at the time of the custody hearing.

Digney testified that Mother continues to struggle with substance

abuse. Mother admitted to using crack cocaine as recently as May 21, 2018, during

her last positive drug screen, but Mother declined to submit to a hair analysis.

Mother also failed to attend an October 2, 2018 screening but later appeared on

October 10, 2018. To complete her case plan, Mother would need to validate that

she is drug-free. Digney pointed to the agency’s records of Mother’s drug abuse

issues since 2002 and emphasized that Mother does not have custody of any of her

children. Children born to Mother in 2008 and 2016 had tested positive for cocaine

at birth.

The parents have split visitation with A.M. at a neighborhood agency

center. Father and A.M. seem to get along well but A.M. whines more with Mother

and becomes defiant upon returning to his foster parents, advising that they are not his real parents. Father participated in domestic violence counseling during his

domestic violence incarceration and subsequent incarceration for violating a civil

protection order forbidding contact with Mother 2017. Father has been involved

with the agency since his release and, until a week prior to the hearing when he filed

for custody of A.M., supported permanent placement with the agency. (Tr. 54.)

Digney expressed concern about the volatility of Mother and Father’s

relationship and their history of drug use. She was also troubled by the confusion

created for A.M. by the entire series of events, such as A.M. referring to both Father

and Mother’s current boyfriend as “dad.” A.M. also exhibits fear and anxiety due to

the uncertainty of changing residences and visitation.

Digney opined:

I do feel it’s in the best interest for [A.M.] to be in the permanent custody of the Agency. It’s no longer about [Mother]. It’s no longer about [Father]. This is a 3-year-old child that has really just been through a lot in his three years of life, and especially going back and forth.

I think he already shows signs of dealing with separation issues. I know that was a concern when [Mother] did have him back. [A.M.] would be very scared of things due to back and forth with visits and stuff. He was very frightful of different things.

To have this happen again and to have him come back again if it should happen, the damage could be irreversible for [A.M.].

(Tr. 57-58.)

Digney last visited Mother in August 2018 at the home of Mother’s

father who has custody of one of Mother’s older sons. Mother continues to engage in drug abuse and mental health counselling. However, Mother still struggles with

periodic relapses and Digney has observed Mother’s sudden mood swings.

Digney expressed concern that placing A.M. with Mother at her

father’s home would not be in the child’s best interest. Though A.M.’s basic needs

of food and shelter may possibly be met, the presence at the home of Mother’s older

son caused concern due to his use of alcohol and drugs.

Mother consistently attends the weekly visits with A.M. and the

interaction between them has improved, but Mother babies A.M. during his temper

tantrums instead of setting boundaries. Digney also advised that A.M. is more

relaxed and congenial at the home of the foster parents and has bonded with them

as well as another child the couple is adopting.

During cross-examination, Digney confirmed that Father has been

compliant with his case plan to date, participated in domestic violence counseling

and has had negative drug test screens. Earlier in October, Mother told Digney that

Father was going to seek custody of A.M. so that Mother could have him. Based on

Digney’s review of the agency’s computer history for Mother, 60 calls had been

placed to the 696-KIDS hotline concerning Mother’s children from 2001 to the

present.

2. Foster Parents

Foster parent L.H. testified that she and her partner reside in a small

town near a school, have an 11-year-old biological child and are in the process of

adopting another foster child who is one year younger than A.M. and who also resides with them. A.M. only spoke a few words and seemed rather pale and sickly

when he first arrived. He also suffered from diarrhea for several days after

supervised visits with Mother who would give him coffee during the encounters. The

foster parents developed a positive relationship with A.M. and Mother to prepare

him for reunification and personally returned A.M. to Mother.

The foster parents remained in contact with Mother. In February

2018, the foster parents kept A.M. at their house for the weekend at Mother’s

request. They had also arranged to pick up A.M. two weeks later but Mother said

that A.M. had gone out of town. The foster parents did not hear from Mother after

that.

In March 2018, A.M. was returned to the foster parents who were

advised that A.M. had been left alone at home again. A.M. became reluctant to

separate from the foster parents and would “throw fits” and run away when drivers

arrived to pick him up for visitation with Mother. (Tr. 121.) A.M. is withdrawn,

throws tantrums, and is defiant and angry after he returns from visits with Mother

and the foster parents have seen little improvement.

The foster parents are willing to provide a permanent home for A.M.

They also agreed that they would allow A.M. to have a relationship with his biological

relatives.

3. The Guardian Ad Litem

The guardian ad litem (“GAL”) testified that she was assigned to the

case in 2015. In December 2017, the GAL recommended reunification with court- ordered protective supervision because Mother had completed the drug court

requirements and the child was doing well.

The GAL’s September 4, 2018 report recommended granting

permanent custody to the agency. The change in opinion resulted from Mother’s

drug relapses as well as visiting the child in the foster home environment where A.M.

seemed happier. Mother “relapsed I think once or twice while she had [A.M.]

back. * * * I would want to see sobriety for like a year. So that is not in the near

future.” (Tr. 145-146.) The GAL did not correspond or communicate directly with

Mother between March and September 2018, except through drug court pretrials

and had not observed A.M. with either parent in 2018. Also, the GAL did not visit

Father’s home because Father had already agreed that the agency should receive

custody and she was not aware of Father’s recent legal custody filing.

4. Findings

The trial court determined that CCDCFS presented clear and

convincing evidence that A.M. should not be reunited with Mother and recited the

foundational events for the decision that dated back to 2015.

The Court finds that the agency did present clear and convincing evidence that it is not in the best interest of the child to be reunited with the mother. The mother has five other children not in her care. The family has been continuously involved with the [CCDCFS] since February 2015. Both the father and the mother relapsed in the fall of 2015. They both admitted this relapse. Protective Supervision was granted in 2016 due to domestic violence by the father against the mother and because the parents were not cooperating with urine screens. The child came into custody in February 2017 when the mother could not be located. The father was incarcerated and no relatives were available or able to take the child.

The mother was reunified on December 19th or 20th of 2017. The mother admitted using opium in February 2018 but the child was not removed at that time. The child was removed from the mother a second time [o]n March 9, 2018 when the mother again disappeared. The mother left the baby with a mom who then called 696-KIDS hotline. The child was returned to the foster home. The mother was convicted of felony Grand Theft as a result of what occurred on March 9, 2018. The mother has also been convicted of Child Endangering. The mother admitted to using crack in February, April, and May of 2018, and the weekend the child came into custody the second time.

The father was in agreement with Permanent Custody until the week before trial. The parents were married and he is the father of three children who are also not in his care and custody. The father was incarcerated for over a year of this three-year-old child’s life. From 2001 to present there have been 60 calls to the hotline regarding this family.

The Court particularly notes the testimony from the social worker that this three-year-old child has been through a lot and the damage would be irreversible if he were reunified and removed a third time.

Journal entry No. 0911787781 (Nov. 20, 2018).

The trial court held the prayer for permanent custody in abeyance

pending an updated report by the GAL addressing Father’s ability to parent, living

situation, and his current relationship with Mother. The January 9, 2019

dispositional hearing was continued to allow Father to meet with the social worker

and foster parents. The parties subsequently participated in a mediation program

at Adoption Network Cleveland. B. February 23, 2019 Final Dispositional Hearing

The GAL filed an updated report and testified, along with Father, at

the final dispositional hearing on February 13, 2019. CCDCFS and Mother’s counsel

also appeared. Mother did not attend.

1. GAL

The GAL maintained the prior recommendation to award permanent

custody to the agency. The GAL observed A.M.’s visit with Father and described it

as “appropriate.” (Tr. 206.) Concerned about the domestic violence history between

Mother and Father, the GAL learned from employees at the visitation location that

Mother and Father had attended visits together. A social worker observed Mother’s

vehicle parked in Father’s driveway when passing the residence one evening, and a

friend of Father advised the GAL that Mother and Father were still involved. The

GAL did not see housing as an issue but did not visit the one-bedroom residence and

was not aware of any conflicts between the foster parents and Father.

The GAL opined that Father seemed to waver about assuming custody

of A.M. and appeared to feel pressured.

Counsel: What conversation did you have with the father? What did you talk to him about?

GAL: About parenting his child.

Counsel: What did [Father] say to you specifically?

GAL: He said that he was wavering back and forth a lot for one. He said that his father and brother, maybe his older son have told him that he should get his son back, and they didn’t like the family situation where he was, but he said that he was fine, he likes them. I just felt that maybe he was being pressured.

Counsel: And when father told you that he was wavering, how did that affect your report which recommended permanent custody?

GAL: Concerned.

Counsel: Would you ever recommend a child go to someone who’s wavering on being a parent?

Gal: No. I mean, I was concerned that he’s maybe not 100 percent sure that that is what — maybe that’s what he wants, but maybe that’s not what’s best for his child.

(Tr. 209-210.)

2. Father

Father testified that he has a one-bedroom apartment and that he is

able to support A.M. on income received from his employment with a nonprofit

organization where he has worked since April 2018. Father also works periodically

for his brother’s tree service and has completed his CCDCFS case plan. Father would

place A.M. in daycare while working.

Father said that he was with A.M. for the first 14 months of his life

and that, since his release from incarceration, he has grown closer to A.M. through

weekly visits. “[T]he young man’s been through a lot.” (Tr. 173.) “I’d like to give

him someplace stable permanently.” Id. “It’s tough” saying goodbye at visits and

“[i]t’s great when it’s just me and him.” (Tr. 174.) “Sometimes when [Mother] shows

up, it can be a little chaotic.” Id.

According to Father, Mother has a lot of issues and he tried to help

her when he could but “a couple of weeks” before the hearing, Father decided he could no longer help her because it began to “affect my peace and serenity.”

(Tr. 175.) Father informed the GAL that he would let the courts handle visitation

arrangements for Mother if he receives custody. Father believes Mother has

outstanding warrants and “absolutely” believes Mother is using drugs again. Father

denies that he is still involved with Mother and said that others who saw them

together were probably just misled.

Father confirmed that his other children urged him to obtain custody

of A.M. and admitted that he wavered on the issue during the summer. “I wanted

to make sure that I wanted him for the right reasons, and I wanted his best interests

at heart.” (Tr. 182.)

Counsel: And if the foster parents kept him and they let you have visits, would that be like an ideal situation? You could be a part of his life?

Father: I don’t know if it would be ideal, but I don’t know if there’s any ideal situation concerning this case anymore.”

Id.

Father denied that, after his October 2018 urine screen, he failed to

submit to agency requests for tests on November 6, 2018 and November 18, 2018,

and claimed that he has been sober since his November 16, 2016 incarceration.

Father testified that he has completed classes and counseling for anger

management, domestic violence, and intensive outpatient treatment. He also

submits to drug testing at Cleveland Catholic Charities when asked.

In response to Father’s inquiry whether Ohio recognizes open

adoptions, the trial court responded that it would like to see the social workers, foster parents, and Father “sit down and talk about the case.” (Tr. 184.) The trial

court continued,

And I am very aware of this will be [A.M.’s] third removal if it doesn’t work out, so I don’t want to risk that, but I respect where you’re coming from, sir.

So I want you guys to sit down and talk about this. I’m sensing some ambiguity here, and there’s been no opportunity for you guys to talk. I want you to talk. I want you to sit down with the social worker and the foster parents.

Tr. 185.

Mother’s counsel asked whether Mother would be allowed to

participate in the meeting. The trial court responded:

No. No. And I’ll tell you why. Because if it was just her, I’d grant permanent custody [to the agency], and I think I spelled that out, did I not, in my [November 2018] journal entry. And I think she would introduce a wild card element to this that would be unhelpful.

I’m not gonna — I can’t, you know, separate them out. If you want to draft it, if you want to brief it why she should be there, go ahead. You know, I respect your right to do that, but I’m just telling you, [the GAL’s] concern, and I share it, is the chaos [that] is introduced here.

You know, your concern was that she’s got — and we’ve already had reunification with your client. That’s why we’re here. This is number three now.

So, you know, I remember the foster mother talking about, you know, the child on the first time, and then [Mother] was reunified and we came back and it changes. No. I don’t think that’s where we — we’re not going in that direction.

(Tr. 185-186.) Questioned about losing custody of his other children with Mother,

Father explained that he is more mature and is now sober. Father was also asked

whether he, or his son, have concerns about the suitability of the foster parents.

Counsel: What are your ideas of what a family unit should be?

Father: Two people raising a child that love each other. That’s the ideal.

Counsel: What about where [A.M.] is right now?

Father: I think that those women are — it sounds like a great place.

(Tr. 190.) Father suggested that counsel subpoena his son if he wanted additional

information.

Father explained that his protection order violation resulted from

sending a letter to Mother about A.M. and his well-being. He served six months

“because I didn’t follow directions.” (Tr. 197.) “There was nothing violent about

that letter.” Id.

If awarded custody, Father would allow A.M. to visit with the foster

parents. “I spent a lot of restless nights in the penitentiary when I knew that [A.M.]

was at home with — you know. I slept better once I met [the foster parents]” and “I

knew that he was in a safe place.” (Tr. 201.)

Father has continued to engage with Catholic Charities on a

voluntary basis. He explained that his drugs of choice have been alcohol and

cocaine. Father admitted that he is still an addict because addiction can be in

remission but cannot be cured. Father suffered a temporary drop in attendance at

Catholic Charities in November 2018. “[I]t’s not something that I planned on attending the rest of my life. I go to Alcoholics Anonymous meetings for that.”

(Tr. 204.)

C. Findings

On March 6, 2019, the trial court incorporated its prior findings and

determined that permanent custody is in the best interest of the child and that the

child could not be placed with the parents within a reasonable time. Father has not

appealed the trial court’s order. We address Mother’s timely appeal below.

II. Assignment of Error

Mother’s single assignment of error charges that the trial court’s

decision is not based upon sufficiently clear and convincing evidence, is against the

manifest weight of the evidence, and erroneously determines that the permanent

custody award to the agency is in the best interest of the child.

Parents have a constitutionally protected, fundamental interest in the

management, custody, and care of their children. Troxel v. Granville, 530 U.S. 57,

66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). “We recognize, however, that

termination of parental rights is ‘the family law equivalent of the death penalty in a

criminal case.’” In re J.B., 8th Dist. Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66,

quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14.

However, a parent’s right to raise a child is not absolute and it is

“‘always subject to the ultimate welfare of the child, which is the polestar or

controlling principle to be observed.’” In re L.D., 8th Dist. Cuyahoga No. 104325, 2017-Ohio-1037, 86 N.E.3d 1012, ¶ 29, quoting In re Cunningham, 59 Ohio St.2d

100, 106, 391 N.E.2d 1034 (1979).

CCDCFS filed for permanent custody on the ground that A.M. has

been declared to be a neglected and dependent child under R.C. 2151.03(A)(2) and

R.C. 2151.04(D). A neglected child is one “[w]ho lacks adequate parental care

because of the faults or habits of the child’s parents, guardian or custodian.”

R.C. 2151.03(A)(2).

A dependent child is one

(A) Who is homeless or destitute or without adequate parental care, through no fault of the child’s parents, guardian, or custodian;

(B) Who lacks adequate parental care by reason of the mental or physical condition of the child’s parents, guardian, or custodian;

(C) Whose condition or environment is such as to warrant the state, in the interests of the child, in assuming the child’s guardianship;

(D) To whom both of the following apply:

(1) The child is residing in a household in which a parent, guardian, custodian, or other member of the household committed an act that was the basis for an adjudication that a sibling of the child or any other child who resides in the household is an abused, neglected, or dependent child.

(2) Because of the circumstances surrounding the abuse, neglect, or dependency of the sibling or other child and the other conditions in the household of the child, the child is in danger of being abused or neglected by that parent, guardian, custodian, or member of the household.

R.C. 2151.353(A)(4) authorizes a trial court to grant permanent

custody to the agency where, as in this case, a child has been adjudicated as

neglected, dependent, or abused. The trial court must determine by clear and convincing evidence that: (1) “the child cannot be placed with one of the child’s

parents within a reasonable time or should not be placed with either parent”

pursuant to R.C. 2151.414(E); and (2) “permanent commitment is in the best interest

of the child” pursuant to R.C. 2151.414(D)(1). R.C. 2151.353(A)(4).

A. Standards of Review

“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 Jacobs, 11th Dist. Geauga

No. 99-G-2231, 2000 Ohio App. LEXIS 3859, *11 (Aug. 25, 2000), citing In re

Taylor, 11th Dist. Ashtabula No. 97-A-0046, 1999 Ohio App. LEXIS 2620 (June 11,

1999).

“Clear and convincing evidence” is that measure or degree of proof

that is more than a “preponderance of the evidence,” but does not rise to the level of

certainty required by the “beyond a reasonable doubt” standard in criminal cases.

In re M.S., 8th Dist. Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing

In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing

Lansdowne v. Beacon Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512

N.E.2d 979 (1987). It “produces in the mind of the trier of fact a firm belief or

conviction as to the facts sought to be established.” In re M.S. at ¶ 18.

“It is well established that when some competent, credible evidence

exists to support the judgment rendered by the trial court, an appellate court may

not overturn that decision unless it is against the manifest weight of the evidence.” In re C.T., 8th Dist. Cuyahoga No. 87159, 2006-Ohio-1944, ¶ 15, quoting Seasons

Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984); C.E.

Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 280, 376 N.E.2d 578 (1978).

Therefore,

[t]he discretion which a trial court enjoys in custody matters should be accorded the utmost respect, given the nature of the proceeding and the impact the court's determination will have on the lives of the parties concerned. In re Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001- Ohio-4137. The knowledge a trial court gains through observing the witnesses and the parties in a custody proceeding (i.e., observing their demeanor, gestures and voice inflections and using these observations in weighing the credibility of the proffered testimony) cannot be conveyed to a reviewing court by a printed record. Id., citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). In this regard, the reviewing court in such proceedings should be guided by the presumption that the trial court’s findings were indeed correct. Seasons Coal Co., Inc., supra at 80. As the Supreme Court of Ohio has stated, “it is for the trial court to resolve disputes of fact and weigh the testimony and credibility of the witnesses.” Bechtol v. Bechtol, 49 Ohio St.3d 21, 550 N.E.2d 178 (1990).

In re C.T. at ¶ 15.

The R.C. 2151.414(D) determination of a child’s best interest under

the R.C. 2151.414(D) factors “is an application of the court’s discretion based upon a

nonexclusive list of factors. We review that determination for an abuse of

discretion.” In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 43. “An

abuse of discretion implies that the court’s decision was unreasonable, arbitrary, or

unconscionable, and not merely an error of law or judgment.” Id., citing

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). B. Discussion

1. R.C. 2151.414(E) — Placement with Parent within a Reasonable Time

Mother concedes that A.M. has been in the custody of CCDCFS since

March 2018. However, Mother argues that the record does not support the finding

by clear and convincing evidence that A.M. cannot be placed with Mother within a

reasonable period of time. In support of her position, Mother offers that she has:

(1) substantially completed her case-plan objectives, (2) participated in mental

health services through a family services agency since 2015; (3) participated in

domestic violence counseling; (4) completed substance abuse counseling at hospital

program; and (5) has been drug free since May 2018.

Mother also offers that her current period of sobriety and historical

willingness to participate in substance abuse and mental health abatement activities

should be equitably balanced against the social worker’s concerns of relapse. The

record demonstrates that the relapse concerns are empirically supported.

In the final judgment entry, the trial court incorporated its findings

from the November 20, 2018, journal entry and added that it continued the

January 9, 2019 to allow completion of the investigation regarding suitability of the

Father. The trial court also noted that Father, the social worker and the foster

parents “were able to discuss the case through a mediation program at Adoption

Network Cleveland.” Journal entry No. 091299158 (Mar. 7, 2019), p. 1.

The trial court determined that R.C. 2151.414(E)(1) applies: (E) In determining 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 whether a child cannot be placed with either parent within a reasonable period of time or should not be placed with the parents, 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 home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside the child’s home. In determining whether the parents have substantially remedied those conditions, the court shall consider parental utilization of medical, psychiatric, psychological, and other social and rehabilitative services and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties.

Id. at p. 1-2.

The trial court held,

Pursuant to R.C. 2151.353(A)(4), the Court finds by clear and convincing evidence that the child cannot and should not be placed with either parent for the following reasons in accordance either [sic] Division (E) of Section 2151.414:

(E)(1) Following the placement of the child outside the child’s home and notwithstanding reasonable case planning and diligent efforts by the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home. The Guardian Ad Litem for the child recommends Permanent Custody as being in the * * * best interest of the child. There is no written motion for Legal Custody to any relative or interested individual.

The Court finds that the child’s continued residence in or return to the home would be contrary to the child’s best interest and welfare.

The trial court also determined that the agency made “reasonable

efforts” at reunification. R.C. 2151.419:

The Court finds that CCDCFS has made reasonable efforts to prevent placement and/or to make it possible for the child to remain in or return to the home of the mother. The Court finds that CCDCFS has made reasonable efforts to finalize the permanency plan as described at trial. The permanency plan for the child is approved. The case plan is the permanency plan. The permanency goal is adoption.

Journal entry No. 091299158, p. 2. (Mar. 7, 2019). The criminal conviction record

of Mother and Father as well as Mother’s drug relapses are additional relevant

factors under R.C. 2151.414(E)(16).

The trial court concluded:

It is therefore ordered that the order made committing the child to the Emergency Temporary Custody of CCDCFS is terminated. The parental rights of mother * * * and father * * * are hereby terminated. * * *

The Court finds that the child’s continued residence in or return to the home of mother will be contrary to the child’s best interest.

The agency engaged in multiple efforts for permanent reunification

of A.M. with Mother in spite of Mother’s history of chemical dependence. Mother

tested positive for cocaine consumption during the pregnancy. Three of Mother’s children had been removed from the home due to the substance abuse issues and

custody of a sibling born to Mother less than a year after A.M.’s birth was voluntarily

relinquished.

Notwithstanding the questionable history, CCDCFS viewed as factors

against removal of A.M. at that time: (1) Mother’s participation in substance abuse

and mental health counseling; (2) Mother’s residency in a sober environment; and

(3) that Mother and Father, who suffered from chemical dependency and an abusive

relationship history, were not residing together.

A.M.’s first emergency removal due to Mother’s substance abuse

stemmed from Mother’s failure to return after leaving A.M. with a friend so that

Mother could secure drugs. Police and agency intervention were required. A.M. was

declared neglected and dependent, the agency obtained temporary emergency

custody and A.M. was placed in foster care. Mother’s relationship with the foster

parents and A.M. was developed and nurtured for potential reunification with

Mother. Mother participated in drug abuse and mental health counseling. Mother

and A.M. were reunited, and CCDCFS maintained protective supervision.

Just a few months after reunification, Mother left A.M. in her

apartment with a sleeping boyfriend so that Mother could obtain drugs. The

boyfriend left A.M. alone at the apartment and A.M. wandered to the home of a

neighbor who contacted the police. Mother pleaded guilty to endangering children

and grand theft of the boyfriend’s vehicle. The foster parent testified that the initially positive relationship with

Mother and A.M. deteriorated when A.M. rejoined the foster parents several months

later. A.M. was clingy, reacted negatively to being transported for visits with Mother

and was irritable and angry after returning from visits. Mother allowed A.M. to visit

the foster parents during the first reunification but, during the second reunification,

contact eventually ceased. The GAL recommended granting custody to the agency

due to Mother’s inability to overcome the substance abuse issues. No family

members were able to assume custody. Father also testified that Mother was still

using drugs and that she has mental health problems. The trial court, social worker,

and GAL expressed great concern that a third reunification would be traumatizing

for three-year-old A.M.

We find that the trial court’s decision that A.M. could not be placed

with Mother within a reasonable time pursuant to R.C. 2151.414(E) is supported by

clear and convincing evidence.

2. R.C. 2151.414(D)(1) — Best Interests of the Child

When determining the child’s best interest pursuant to

R.C. 2151.414(D)(1), courts analyze all relevant factors including: (1) the interaction

and interrelationship of the child with others; (2) the wishes of the child expressed

directly or through the GAL; (3) the custodial history of the child; (4) the child’s need

for a legally secure placement and whether such a placement can be achieved

without permanent custody; and, (5) whether any of the factors in divisions

R.C. 2151.414(E)(7) to (11) apply. In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007- Ohio-827, ¶ 29-34, citing R.C. 2151.414(D)(1). “If even one of the factors exists, the

court is mandated to enter a finding that the child cannot or should not be placed

with the parents.” In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 26,

quoting In re Hauserman, 8th Dist. Cuyahoga No. 75831, 2000 Ohio App. LEXIS

338 (Feb. 3, 2000).

The “best interest determination” focuses on the child, not the parent.

R.C. 2151.414(C); In re Awkal, 95 Ohio App.3d 309, 315, 642 N.E.2d 424 (8th

Dist.1994). The discretion that the juvenile court enjoys in deciding whether an

order of permanent custody is in the best interest of a child should be accorded the

utmost respect, given the nature of the proceeding and the impact the court’s

decision will have on the lives of the parties concerned. Id. at 316.

The trial court determined that awarding permanent custody to the

agency is in A.M.’s best interest under R.C. 2151.414(D)(1) and cited the underlying

factors:

The Court further finds that, in accordance with Division (D)(1) of R.C. 2151.414, Permanent Custody is in the child’s best interest: The interaction and interrelationship of the child with the parents, siblings, relatives and foster parents; the wishes of the child (the child is too young to express wishes); the custodial history of the child, including whether the child has been in temporary Custody of a public child services agency or private child placing agency under one or more separate orders of disposition for twelve or more months of a consecutive twenty-two month period; 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, and whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child. These factors weigh in favor of Permanent Custody. Journal entry No. 091299158 (Mar. 6, 2019), p. 2.

As this court has previously recognized on the question of manifest

weight of the evidence, a “claim that a factual finding is against the manifest weight

of the evidence requires us to examine the evidence and determine whether the trier

of fact clearly lost its way.” In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-

827, ¶ 44, citing In re M.W., 8th Dist. Cuyahoga No. 83390, 2005-Ohio-1302.

In reviewing an appeal involving an award of permanent custody,

“the ultimate question for a reviewing court is whether the trial court’s findings are supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. This is because a juvenile court’s decision to grant permanent custody will not be reversed as being against the manifest weight of the evidence “if the record contains some competent, credible evidence from which the court could have found that the essential statutory elements for permanent custody had been established by clear and convincing evidence.” In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

In re S.C., 8th Dist. Cuyahoga No. 108036, 2019-Ohio-3664, ¶ 74.

The trial court reiterated on the record that it would be interested in

the results of a meeting between the Father, foster parents, and the agency but stated

that it would not order that the meeting occur. Father has not appealed the trial

court’s final judgment. The trial court also stated on the record several times that

the focus is on the child. “I do want to emphasize, because it did make a big

impression on me, is [Digney]’s comment about the damage that would happen if

this child is reunified and removed a third time.” (Tr. 214.) The weight of the evidence supporting the permanent placement of

A.M. with CCDCFS is clear and convincing. A.M. has been adjudicated a dependent

child and the agency has been involved in his life since birth in 2015 to a drug

addicted mother. The agency has twice assumed emergency temporary custody of

A.M., twice attempted reunification with Mother and has exercised protective

supervision. Mother continues to suffer from drug relapses in spite of ongoing

mental health and substance abuse counseling services and there are no family

members willing or able to assume custody. More than 60 calls to the agency’s 696-

KIDS emergency hotline have been made regarding children in Mother’s household.

All of Mother’s children have been removed from her care.

A.M. has been placed with foster parents who love, support, and

would like to adopt him. The foster parents are amenable to allowing visitation by

A.M.’s biological family members. Notwithstanding Mother’s participation in

programs to address her drug addiction and documented mental health concerns,

she is unable to provide an adequate and suitable home for A.M. The concerns

expressed by the social worker, trial court, and GAL about the traumatic emotional

impact of removing three-year-old A.M. from the foster parents a third time are

well-founded.

The record contains clear and convincing evidence that the trial court

did not abuse its discretion in determining that permanent custody is in the best

interest of the child. The trial court’s decision to grant permanent custody to

CCDCFS is not against the manifest weight of the evidence. “The purpose of the termination of parental rights statutes is to make

a more stable life for the dependent children and to facilitate adoption to foster

permanency for children.” In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-

314, ¶ 67, citing In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio

App. LEXIS 7860, *5 (Aug. 1, 1986). We find that the purpose has been fulfilled by

the trial court’s award.

The assigned error is without merit.

III. Conclusion

The trial court’s judgment is affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

__ ANITA LASTER MAYS, JUDGE

MARY J. BOYLE, P.J., and LARRY A. JONES, SR., J., CONCUR