In re J.D.

2022 Ohio 2677

Opinion

[Cite as In re J.D., 2022-Ohio-2677.] COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.D., ET AL. :

Minor Children : No. 111039

:

[Appeal by Mother, L.C.] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: August 4, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. AD-18-910336, AD-18-910337, AD-18-910338, AD-18-910339, AD-18-910340, and AD-18-910341

Appearances:

John H. Lawson, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Joseph C. Young, Assistant Prosecuting Attorney, for appellee.

ANITA LASTER MAYS, P.J.:

Appellant L.C. (“Mother”) appeals the juvenile court’s termination of

her parental rights of her minor children, J.D. (who is no longer a minor child), T.H., MI.D., MA.D., MK.C., and MR.C. (“the children”) and the permanent award of

custody of T.H. and MK.C. to the Cuyahoga County Division of Children and Family

Services (“CCDCFS”). We affirm the judgment of the trial court.

I. Facts and Procedural History

On August 19, 2018, MK.C., who was seven years old at the time, was

found by the police walking down the street alone. The police took him home and

found the other five children home without adult supervision. The police observed

that the home had broken windows; had holes in the walls; was filled with trash

throughout the house; and lacked beds, furniture, and food. The police removed

the children from the home.

On August 20, 2018, CCDCFS filed a complaint against Mother

alleging that Mother was neglecting her six children and requested temporary

custody. CCDCFS also filed a motion for predispositional temporary custody. On

that same day, the magistrate granted predispositional custody to CCDCFS.

History of this family reveals that J.D., the oldest child, was committed to CCDCFS’s

protective supervision in 2004, after he was adjudged delinquent, and currently

paternity has not been established. The father of T.H. failed to establish paternity

and is incarcerated until 2037. The father of MI.D. and MA.D. also failed to

establish paternity. At the time of these proceedings, Mother was married and

living with the father (“Father”) of MK.C. and MR.C. On August 22, 2018, Pinkie Clark, the guardian ad litem (“the GAL”)

was appointed for the children. CCDCFS filed a case plan on September 13, 2018,

which indicated that in order for reunification to take place between Mother and the

children, Mother and Father needed to reduce the risks and safety issues in the

home; provide a three-day supply of food in the home; use community resources

such as food stamps, food pantries, and cash assistance; provide a clean home;

provide adequate supervision when the children are left home; attend and complete

a parenting skills program; allow the agency access to the home once per month;

follow through with all agency referrals; complete drug assessments; participate in

a service suggested by the assessment; remain sober; participate in random drug

screens; and have weekly visitations with the children.

On October 25, 2018, CCDCFS amended their complaint to include

that the house and supervision of the children was substandard. Mother

acknowledged that both were below standard, and none of the fathers of the children

were present at the hearing. On November 29, 2018, Mother consented to CCDCFS

receiving temporary custody of the children, and all six of the children were placed

in CCDCFS temporary custody.

CCDCFS requested and received two six-month extensions after

temporary custody was issued in order to give Mother time to rectify her issues.

Those extensions were granted on August 12, 2019, and February 27, 2020. On

July 28, 2020, CCDCFS filed motions to modify the order of temporary custody to permanent custody of the two children, T.H. and MK.C. The other four children

were placed in the custody with other family members. A trial was scheduled for

November 4, 2020; however, Mother filed a motion to continue the trial date. The

trial court granted Mother’s motion, and the trial was rescheduled for March 30,

2021. CCDCFS filed a motion to continue the March 30th trial date because their

counsel had an emergency. The trial court granted the motion and rescheduled the

trial for June 15, 2021.

Mother filed a motion to continue the trial date due to a medical

emergency, and the trial court granted the motion but indicated that it would be the

final continuance. The trial was scheduled and held on September 27, 2021. The

trial court granted custody to CCDCFS for the children as follows: legal custody of

J.D. was granted to his paternal aunt; permanent custody of T.H. and MK.C. was

granted to CCDCFS; and legal custody of MI.D., MA.D., and MR.C. was granted to

the maternal grandparents.

Mother filed an appeal assigning three errors for our review:

I. The trial court erred and abused its discretion by scheduling the trial nearly 400 days after the appellee’s motion for permanent custody was filed in violation of R.C. 2151.414(A)(2);

II. The trial court erred and abused its discretion by awarding permanent custody of T.H. and MK.C. to appellee against the manifest weight of the evidence; and

III. The trial court erred in issuing legal custody order regarding J.D., MI.D., MA.D., and MR.C.

II. Delay of Trial In Mother’s first assignment of error, she argues that the trial court

abused its discretion by violating the 120-day deadline to hold a permanent custody

hearing pursuant to R.C. 2151.414(A)(2), which states in part:

The court shall hold the hearing scheduled pursuant to division (A)(1) of this section not later than one hundred twenty days after the agency files the motion for permanent custody, except that, for good cause shown, the court may continue the hearing for a reasonable period of time beyond the one-hundred-twenty-day deadline. The court shall issue an order that grants, denies, or otherwise disposes of the motion for permanent custody, and journalize the order, not later than two hundred days after the agency files the motion.

The failure of the court to comply with the time periods set forth in division (A)(2) of this section does not affect the authority of the court to issue any order under this chapter and does not provide any basis for attacking the jurisdiction of the court or the validity of any order of the court.

R.C. 2151.414(A)(2).

An appellate court may find that a trial court abused its discretion

only if it finds that the decision of the trial court was unreasonable, arbitrary, or

unconscionable. In re Z.J., 8th Dist. Cuyahoga No. 108834, 2020-Ohio-383, ¶ 15,

citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

The motion for permanent custody was filed on July 28, 2020, and

the hearing was held on September 27, 2021, more than 120 days from when

CCDCFS file for permanent custody. Trial was initially schedule for November 18,

2020, within 120 days, but Mother filed a motion to continue the trial date, which

was rescheduled for January 8, 2021. On that day, an attorney conference was held and the trial date was rescheduled to March 30, 2021. Counsel for CCDCFS filed a

motion to continue, and the trial court rescheduled the trial again for June 15, 2021.

Mother filed a motion to continue because she was unable to attend the trial on that

date, and the trial court rescheduled the trial for September 27, 2021. Each

continuance was for good cause shown.

Although the trial was held more than 120 days from when the motion

for permanent custody was filed, and more than 200 days after continuances,

Mother was responsible for the trial being delayed twice and CCDCFS once.

“Because the time provisions of R.C. 2151.414(A)(2) are directory and not

mandatory, the Ohio Supreme Court has held that a litigant must seek a writ of

procedendo against the juvenile court if it does not comply with these time limits.”

In re K.H., 5th Dist. Licking No. 13-CA-100, 2014-Ohio-1594, ¶ 14, citing In re Davis,

84 Ohio St.3d 520, 523-524, 705 N.E.2d 1219 (1999). “If a party does not seek such

a writ, he is stopped from arguing on appeal that delay by the juvenile court violated

his due process rights.” Id. See In re M.G., 5th Dist. Richland No. 16CA18, 2016-

Ohio-5256, ¶ 37. See also In re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-

Ohio-1151, ¶ 8 (“[T]he failure to meet the 200-day time frame contained in

R.C. 2151.414(A)(2) does not provide a basis for attacking the validity of the

judgment.”). Because Mother was responsible for the trial being delayed twice,

good cause has been shown as to why the trial court scheduled the trial beyond the

statutory limits. Therefore, Mother’s first assignment of error is overruled.

III. Permanent Custody

In Mother’s second assignment of error, she contends that the trial

court erred by awarding permanent custody of T.H. and MK.C. to CCDCFS against

the manifest weight of the evidence.

To terminate parental rights and grant permanent custody to a county

agency, the record must demonstrate by clear and convincing evidence the

following: (1) the existence of one of the conditions set forth in

R.C. 2151.414(B)(1)(a) through (e); and (2) permanent custody is in the best interest

of the child. In re S.H., 8th Dist. Cuyahoga Nos. 97992, 97993, and 97994, 2012-

Ohio-4064, ¶ 27. “‘Clear and convincing evidence’” is that quantum of evidence

that instills in the trier of fact a firm belief or conviction as to the allegations sought

to be established.” In re Y.V., 8th Dist. Cuyahoga No. 96061, 2011-Ohio-2409, ¶ 13,

quoting Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

When determining the child’s best interest pursuant to

R.C. 2151.414(D)(1), courts analyze the following factors: (1) the interaction and

interrelationship of the child with others; (2) the wishes of the child; (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.

Also,

[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 G.W., 8th Dist. Cuyahoga No. 107512, 2019-Ohio-1533, ¶ 62, quoting In re

A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

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.

Thus, we review “a trial court’s determination of a child’s best interest

under R.C. 2151.414(D) for abuse of discretion.” In re V.C., 8th Dist. Cuyahoga

Nos. 102903, 103061, and 103367, 2015-Ohio-4991, ¶ 52, citing In re L.O., 8th Dist.

Cuyahoga No. 101805, 2015-Ohio-1458, ¶ 22. “An abuse of discretion implies that

the court’s decision was unreasonable, arbitrary or unconscionable.” Id., citing

Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.

A. Children’s Interview During the proceeding to determine if permanent custody should be

awarded to the agency, the trial court requested an interview with three of the

children. Two of the children explained to the trial court that they enjoyed living

with their current placements and did not wish to return home if Mother and Father

were living together. The children also describe the living conditions of the home,

while living with Mother and Father, as not having electricity, broken windows, and

a lack of beds and furniture.

B. Trial Testimony

At trial, Sarah Narine (“Narine”), social worker for CCDCFS, testified

that after MK.C. led police to the family home, the home was in deplorable

conditions and was unsafe. The police attempted to contact Mother but were

unable, so the children were removed from the home and placed in the emergency

care of CCDCFS. Narine explained that the goal of CCDCFS was to reunify the

children with their parents and a case plan was created for both Mother and Father.

Narine testified that the case plan included housing, parenting classes, stable

income, and substance abuse treatment.

Narine testified that Mother’s drug tests came back positive for

cocaine on August 18, 2020, September 17, 2020, and January 21, 2021; however,

Mother received a certificate stating that she completed her Intensive Outpatient

Services for substance abuse. Narine also testified that Mother was initially

resistant to attending parenting classes because she felt the children’s behavioral issues were due to them being in foster care, not due to her parenting. However,

Narine testified that after speaking with the children, the behaviors had been going

on quite some time before the children were removed from the home. Mother,

however, did attend some parenting classes.

Narine also testified that the agency had some concerns regarding

Father because he was not making any progress with the case plan or addressing the

issues on the plan. It was explained to Mother that this was an issue because Father

lived in the home and was married to Mother. Mother told CCDCFS that she would

get divorced. However a divorce never took place and, according to Father, they

were still together and not separated. Father was also aware that he was not

addressing his case plan services.

Narine testified that Mother providing adequate housing was a

concern because within two years, Mother and Father had lived in multiple houses.

She also explained that Mother seem to understand the objectives of the case plan.

Narine explained to Mother and Father that the case plan had to be completed by

each parent. Father has tested positive for cocaine multiple times. Father was

referred to Recovery Resources to address his substance abuse issues; however, he

was not successful in that program because he continued to test positive for cocaine.

Although Father completed parenting classes, the agency still had

concerns about his treatment of the children, specifically his inability to manage his

anger around the children. Father also claimed that he was living in a shelter, separate from Mother. However, Narine testified that there were concerns that

Father and Mother were residing in the same home together. During video chats

with the children, Father and Mother were together and would show the home they

were living in together.

Narine also testified that when she visited Mother at her home,

Father’s truck was in the driveway, but Mother told Narine that the truck belonged

to someone else. Mother also never provided documentation that they were legally

separated or divorced, although she maintained over the years that they were going

to get divorced. Narine also stated that she observed Mother and Father in Father’s

truck together leaving court. Narine also observed Mother and Father together at

Starbucks in the same truck she observed in the driveway.

Narine also explained there were concerns that even though Mother

completed the substance abuse treatment plan, Mother was still testing positive for

cocaine. Narine testified that Mother’s sons were not comfortable with Father in

the home. The sons reported that Father forced them to panhandle. Daughters

J.D. and T.H. reported being uncomfortable in Father’s presence, and there were

sexual abuse allegations against Father.

Narine testified that she made it clear to Mother and Father that

Father needed to complete the services in order for reunification to occur. She told

Mother and Father that even if they’re separated, they both needed to make sure the

services were completed. Narine also testified that at visitations with Mother, Father, and the

children before Covid-19 protocols, Father would get angry with the children and he

left two visits early due to his anger. There also was a report that Father may have

burned one of the boys during a visit.

Narine also explained that in regards to T.H. and MK.C., the agency

was unable to find familial placement for them, so the agency had to file for

permanent custody. As to the other four children, the agency filed for legal custody

because they were able to locate familial placement. Narine expressed some

concern with MK.C., who was the only child to want to return home with her parents

because she has been in more foster homes than any of the other children.

According to Narine, Mother and Father always expressed to her that she was

coming home, so it created emotional distress for MK.C.

On cross-examination by Mother and J.D.’s attorneys, Narine

testified that Mother obtained a lease without Father’s name. Narine also testified

that both Mother and Father completed a parenting course but also noted that

neither had completed their case plan.

On redirect examination, Narine testified that the agency requested

two six-month extensions of temporary custody to give Mother and Father

additional time to complete their case plan. However, when asked why the agency

was seeking permanent custody, Narine replied that Mother and Father had not made sufficient progress with their case plan for the agency to reunify them with the

children.

After Narine, J.D.’s paternal aunt (“aunt”) testified. Aunt testified

that she was present for a visit between J.D., M.K.C, and Mother. Aunt stated that

after the visit, she observed Mother get into a vehicle that was driven by Father.

Aunt also testified that J.D. was very concerned with seeing Father pick up Mother

because she did not want to see him. Aunt explained that before each visit, J.D.

would ask if Father was going to be there because she just wanted to see Mother.

The trial court asked aunt if J.D. seemed scared when she saw Mother and Father

together, to which aunt replied, “Yes she does.” (Tr. 112.)

Shakeya McKether (“McKether”), a supervisor for CCDCFS, testified

that she was assigned to the case of the children. She testified that the children

were removed from the care of Mother and Father because they could not provide

the basic needs for the children. McKether also testified that Mother lacked

appropriate decision-making skills because of the excessive phone calls that the

childcare providers would receive from Mother and the fact that Mother kept telling

the agency that she was either divorced or separated from Father but provided no

evidence to that fact.

McKether testified that the agency made several referrals for Mother

including mental health, substance abuse treatment, and parenting classes.

McKether stated that she attempted to facilitate visitation, but Mother was not consistent during the time McKether was assigned to the case. She also testified

that Mother tested positive for cocaine several times. McKether testified that the

agency had concerns with Mother and Father’s relationship, because the children

reported they were fearful of Father and did not want to return home because Father

was still living with Mother.

McKether testified that the agency expressed the children’s concerns

with Mother. Mother stated that she did not know why the children did not want

to be around Father, and she felt as if the agency encouraged the children to falsify

these statements. McKether stated to the trial court that the agency had concerns

about returning the children to Mother’s care because there were multiple reports

from the children that they had been homeless and transient. The children also

reported to the agency that Father would take Mother’s money and they would have

to panhandle in order to have money. After panhandling, Father and Mother

would take the money from the children but not provide food for them.

McKether also expressed that T.H. had concerns about Father living

in the home with Mother. When T.H. expressed those concerns, Mother stopped

communicating with her for weeks. Mother told T.H. that Father was just giving

her a ride home from work. However, T.H. stated that Father was in Mother’s

home around 10:00 or 11:00 at night. T.H. told Mother that Father should not have

been in the home at that time of night. [Cite as In re J.D., 2022-Ohio-2677.] McKether testified that the children expressed some suffering of

physical abuse from Father and that Father treated his biological children differently

than his stepchildren. Specifically, the children reported that when Mother would

leave the house, Father would allow his biological children to watch TV and roam

the home, while the stepchildren had to stay in their rooms.

McKether also testified that the agency still had significant concerns

with reunification between the parents and children because Mother was still

married and involved with Father. She stated that there were still barriers in the

relationship between Mother and children. Mother would not answer the phone

when the children would call but then would call late and excessively to the point

that Mother’s father had to contact the authorities regarding threatening and

harassing voicemails left by Father.

McKether testified that during Christmas, Mother called the children

and told them she bought presents but would not give them to the children until

they were returned home. According to McKether, this caused some emotional and

mental health issues for the children. McKether spoke to Mother and asked if she

could pick the presents up and take them to the kids. Mother told McKether that

the presents had to stay in her home until the children returned.

McKether ended her testimony by stating that the agency was seeking

permanent custody of T.H. and MK.C. because there were no family members that

would take custody of the girls. McKether also testified that Mother’s home is not emotionally appropriate because the children do not have an appropriate

relationship with Mother. There were concerns that Father was staying in the

home with Mother and that Mother would constantly involve Father in the virtual

visitations.

Lee Barbee (“Barbee”), extended care worker for CCDCFS and

current case manager assigned to the children, testified after McKether. Barbee

testified that since receiving the children on his caseload, he has tried to facilitate

efforts at reunification between Mother and the children. Specifically, he had been

working with Mother to address her drug addiction issues. Barbee explained to the

court that Mother continues to test positive for cocaine and tested positive the

Thursday before the permanency hearing. He also testified that Mother’s home

was physically appropriate. Barbee stated that he tried to engage with Father but

Father refused.

Barbee further testified that he facilitated phone calls and visitations

between the children and Mother. During those visits, MK.C. exhibited signs of

closeness with Mother. Barbee explained that the agency had located another

relative that could be available to obtain custody of T.H. and MK.C., who were

currently placed together in a foster home.

After Barbee’s testimony, both counsel for Mother and the state

rested their case. The trial court asked the GAL to submit her report. In the

report, the GAL stated that she did not see any problem with the state asking for legal custody of J.D., and that J.D. desires not to return to her mother’s home. The

GAL also stated that she agreed with J.D. and it is not in the best interest of J.D. to

return to Mother.

The GAL also expressed that T.H. did not want to return to Mother

and that is not in T.H.’s best interest to be returned to Mother. The GAL continued

stating that it was not in the best interest of any of the children to be returned to

Mother because Mother has not addressed many of the concerns that were the

catalyst for the children being removed from her. She stated that Mother is unable

to provide adequate supervision for the children. The children have stated that

neither Mother nor Father were able to adequately supervise them, and they believe

that the oldest children would be responsible for their care.

The GAL also stated that MK.C. is the only child that wants to return

to Mother, but she was very young during removal and does not remember all of the

details that led to the children being removed from the home. The GAL explained

that the three boys are living with Mother’s father, are doing well in the home and

are getting their mental health needs addressed through counseling.

At the end of the hearing, the trial court awarded permanent custody

of T.H. and MK.C. to CCDCFS. The trial court issued journal entries for both

children stating:

The parents have failed to complete the case plan, and the mother’s substance abuse is still a safety issue. The child is afraid of [Father], the mother’s husband and father of two of the children in this case, and there was testimony that the mother continues to have a relationship with him. This child has been in custody for three years, and two extensions of temporary custody have already been granted.

Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).

C. Legal Analysis

1. Clear and Convincing Evidence

The trial court has authority to grant permanent custody to CCDCFS

where, as in this case, a child has been adjudicated as neglected, dependent, or

abused.

When an agency files a permanent custody motion under R.C. 2151.413 after obtaining temporary custody, the guidelines and procedure set forth under R.C. 2151.414 apply. Division (B) of R.C. 2151.414 sets forth a two-prong analysis to be applied by a juvenile court. Pursuant to this division, before a trial court can terminate parental rights and grant permanent custody to a county agency, the court must find by clear and convincing evidence (1) the existence of any one of the conditions set forth in R.C. 2151.414(B)(1)(a) through (e), and (2) that granting permanent custody to the agency is in the best interest of the child.

In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 45 (8th Dist.).

“Only one of the four factors must be present for the first prong of

the permanent custody analysis to be satisfied. * * * Once the juvenile court

ascertains that one of the four factors listed in R.C. 2151.414(B)(1) is present, then

the court proceeds to an analysis of the child’s best interest.” In re J.B., 8th Dist.

Cuyahoga No. 98565, 2013-Ohio-1705, ¶ 80-81. Regarding the first prong of the

analysis, the trial court stated in its journal entries,

[p]ursuant to R.C. 2151.414(B)(1)(a) and (d), the Court finds by clear and convincing evidence that it is in the best interest of the child to grant permanent custody to the agency that filed the motion for permanent custody and that the following apply: The child cannot be placed with either parent within a reasonable time or should not be placed with the parent. This factor is discussed as part of the (E) factors of R.C. 2151.414 below. The child has been in the temporary custody of CCDCFS for twelve or more months of a consecutive twenty-two-month period.

Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).

R.C. 2151.414(B)(1)(a) states in part:

[T]he 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 * * * the following apply: 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.

The trial court determined that T.H. and MK.C. could not be placed

within a reasonable time or should not be placed with either parent because there is

evidence that one or more factors in division (E) of R.C. 2151.141 exist:

(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; and

(4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate with the child when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the child.

Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).

Continuing to address the first prong of the analysis, the trial court

stated in its journal entries:

The parents have failed to complete the case plan, and the mother’s substance abuse is still a safety issue. The child is afraid of [Father], the mother’s husband and father of two of the children in this case, and there was testimony that the mother continues to have a relationship with him. This child has been in custody for three years, and two extensions of temporary custody have already been granted.

Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).

We recognize that “a parent’s right to raise a child is an essential and

basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). And

the “‘[p]ermanent termination of parental rights has been described as “the family

law equivalent of the death penalty in a criminal case.”’” In re Hoffman, 97 Ohio

St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14, quoting Hayes at 48, quoting In

re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45 (6th Dist.1991). Also, “‘termination

of the rights of a birth parent is an alternative of last resort.’” In re Gill, 8th Dist.

Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21, quoting In re Wise, 96 Ohio App.3d 619, 645 N.E.2d 812 (9th Dist.1994), citing In re Cunningham, 59 Ohio St.2d 100,

105, 391 N.E.2d 1034 (1979). However, as to the first prong of the analysis, we

cannot state that the trial court erred when it determined by clear and convincing

evidence the existence of the conditions set forth in R.C. 2151.414(B)(1)(a), as

discussed above, that resulted in awarding permanent custody of T.H. and MK.C. to

CCDCFS.

2. Best Interest of the Child

The second prong of the analysis requires the trial court to determine

that granting permanent custody to the agency is in the best interest of the child.

In accordance with R.C. 2151.414(D)(1),

[i]n determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following:

(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, 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;

(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.

For the purposes of division (D)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

R.C. 2151.414(D)(1).

Additionally, in its journal entries, the trial court stated:

While it was not argued in trial, the Court notes that pursuant to R.C. 2151.454(D)(2), “permanent custody is in the best interest of the child and the court shall commit the child to the permanent custody” of CCDCFS if all of the following apply:

(a) The court determines by clear and convincing evidence that one or more of the factors in division (E) of this section exist and the child cannot be placed with one of the child’s parents within a reasonable time or should not be placed with either parent.

(b) The child has been in an agency’s custody for two years or longer, and no longer qualifies for temporary custody pursuant to division (D) of section 2151.415 of the Revised Code.

(c) The child does not meet the requirements for a planned permanent living arrangement pursuant to division (A)(5) of section 2151.353 of the Revised Code. (d) Prior to the dispositional hearing, no relative or other interested person has filed, or has been identified in, a motion for legal custody of the child.

The Court finds that all the factors listed in 2151.414(D)(2) apply in this case.

Journal entry Nos. 0915150361 and 09151550367 (Oct. 20, 2021).

In the trial court’s journal entry regarding T.H., it stated:

The Guardian Ad Litem for the child recommends that permanent custody is in the best interest of the child. Counsel for the child states that the child does not wish to be reunified. The Court conducted an in-camera interview with the child. The GAL report and recommendation, the statements of the child’s counsel, and the in- camera interview are perhaps the most significant factors in this Court’s decision. * * * IT IS THEREFORE ORDERED, that the order heretofore made committing the child to the temporary custody of the Cuyahoga County Division of Children and Family Services is terminated. The child is committed to the PERMANENT CUSTODY of the Cuyahoga County Division of Children and Family Services for the purposes of adoption. * * *

Journal entry No. 0915150361 (Oct. 20, 2021).

In the trial court’s journal entry regarding MK.C., it stated:

The Guardian Ad Litem for the child recommends that permanent custody is in the best interest of the child. The Court conducted an in-camera interview with the child. * * * The Court finds that the child’s continued residence in or return to the home [Mother] and [Father] will be contrary to the child’s best interest. * * * IT IS THEREFORE ORDERED, that the order heretofore made committing the child to the temporary custody of the Cuyahoga County Division of Children and Family Services is terminated. The child is committed to the PERMANENT CUSTODY of the Cuyahoga County Division of Children and Family Services for the purposes of adoption. * * *

Journal entry No. 0915150367 (Oct. 20, 2021). Thus, after a thorough review of the record, we find that there is clear

and convincing evidence supporting the determination to award permanent custody

to CCDCFS, and that the trial court did not abuse its discretion by finding that the

award is in the best interest of the children. Therefore, Mother’s second

assignment of error is overruled.

IV. Legal Custody Orders

In Mother’s third assignment of error, she argues that the trial court

erred in issuing legal custody orders regarding J.D., MI.D., MA.D., and MR.C.

because CCDCFS failed to expend reasonable efforts to reunite the children with

Mother.

In reviewing a trial court’s decision to award legal custody, an

appellate court recognizes that

“[a] trial court’s decision concerning the allocation of parental rights and responsibilities rests within the sound discretion of the trial court. In re A.M.S., 8th Dist. Cuyahoga No. 98384, 2012-Ohio-5078, ¶ 17, citing In re D.J.R., 8th Dist. Cuyahoga No. 96792, 2012-Ohio-698. Specifically, the trial court’s determination of what is in the best interest of the child will not be disturbed absent an abuse of discretion. Drees v. Drees, 3d Dist. Mercer No. 10-13-04, 2013- Ohio-5197, ¶ 20. An abuse of discretion suggests that the trial court’s judgment is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). Under this standard, an appellate court may not merely substitute its judgment for that of the trial court. Id.”

In re M.B., 8th Dist. Cuyahoga No. 105168, 2017-Ohio-7481, ¶ 5, quoting In re

A.P.D., 8th Dist. Cuyahoga No. 100504, 2014-Ohio-1632, ¶ 10. “‘Although the statutory scheme regarding an award of legal custody

does not include a specific test or set of criteria, the [Ohio appellate courts] have

previously held that the juvenile court must base such a decision on the best interest

of the child.’ (Citation omitted.)” Id. at ¶ 11, quoting In re R.R., 9th Dist. Summit

No. 23641, 2007-Ohio-4808, ¶ 12. “‘In legal custody cases, trial courts should

consider all factors relevant to the best interest of the child.’” Id., quoting In re S.J.,

9th Dist. Summit No. 23199, 2006-Ohio-6381, ¶ 34. “‘[T]he factors contained in

R.C. 2151.414(D) may provide guidance to the trial court in making an award of legal

custody.’” Id., quoting In re R.R. at ¶ 12.

In the trial court’s journal entry for J.D., it stated:

The Court finds by a preponderance of the evidence that it is in the best interest of the child to grant Legal Custody to * * *, Paternal Aunt. * * * The Guardian Ad Litem for the child recommends that Legal Custody is in the best interest of the child. Counsel for the child states that the child does not wish to be reunified. The Court conducted an in-camera interview with the child. The GAL report and recommendation, the statements of the child’s counsel, and the in-camera interview are perhaps the most significant factors in this Court’s decision. The parents have failed to complete the case plan, and the mother’s substance abuse is still a safety issue. The child is afraid of [Father], the mother’s husband, and there was testimony that the mother continues to have a relationship with him. This child has been in custody for three years, and two extensions of temporary custody have already been granted. The Court finds that the child’s continued resident in or return to the home of [Mother] will be contrary to the child’s best interest. The continued wardship of the child is not necessary and is not in the child’s best interest.

Journal entry No. 0915150318 (Oct. 20, 2021). In the trial court’s journal entry for MI.D., MA.C., and MR.C., it

stated:

The Court finds by a preponderance of the evidence that it is in the best interest of the child to grant Legal Custody to * * *, maternal grandparents. * * * The Guardian Ad Litem for the child recommends that Legal Custody is in the best interest of the child. Counsel for the child states that the child does not wish to be reunified. The Court conducted an in-camera interview with the child. The GAL report and recommendation, the statements of the child’s counsel, and the in-camera interview are perhaps the most significant factors in this Court’s decision. The parents have failed to complete the case plan, and the mother’s substance abuse is still a safety issue. The child is afraid of [Father], the mother’s husband and father of two of the children, and there was testimony that the mother continues to have a relationship with him. The child has been in custody for three years, and two extensions of temporary custody have already been granted. The Court finds that the child’s continued resident in or return to the home of [Mother] will be contrary to the child’s best interest. The continued wardship of the child is not necessary and is not in the child’s best interest.

Journal entry Nos. 09515150320, 0915150322, and 0915150324 (Oct. 20, 2021).

For all four children, the trial court noted that it considered the best

interests of the children; the interaction and interrelationship of the children with

the parents, siblings, and relatives; the wishes of the children; the custodial history

of the children; and the children’s need for a legally secure permanent placement.

The trial court found that given Mother had not rectified her substance abuse issue,

had failed to complete her case plan, and continued having Father in her home and

life, it was in the best interest of the children to issue legal custody for the children.

Therefore, we cannot say that the trial court erred in issuing an order

of legal custody for the children. V. Reunification

“The Ohio Revised Code imposes a duty on the part of children

services agencies to make reasonable efforts to reunite parents with their children

where the agency has removed the children from the home.” In re R.D.W., 8th Dist.

Cuyahoga No. 110661, 2021-Ohio-4304, ¶ 34, citing R.C. 2151.419. “‘Case plans are

the tools that child protective service agencies use to facilitate the reunification of

families who * * * have been temporarily separated.’” Id., quoting In re Evans, 3d

Dist. Allen No. 1-01-75, 2001 Ohio App. LEXIS 4809, 3 (Oct. 30, 2001). “To that

end, case plans establish individualized concerns and goals, along with the steps that

the parties and the agency can take to achieve reunification.” Id.

“‘Reasonable efforts means that a children’s services agency must act

diligently and provide services appropriate to the family’s need to prevent the child’s

removal or as a predicate to reunification.’” In re R.D.W. at ¶ 35, quoting In re

H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317, ¶ 95.

““‘Reasonable efforts’” does not mean all available efforts.’” Id., quoting In re J.B.,

8th Dist. Cuyahoga No. 109039, 2020-Ohio-3675, ¶ 21, quoting In re Lewis, 4th

Dist. Athens No. 03CA12, 2003-Ohio-5252, ¶ 16. “‘Otherwise, there would always

be an argument that one more additional service, no matter how remote, may have

made reunification possible.’” Id., quoting In re K.M., 12th Dist. Butler No. CA

2004-02-052, 2004-Ohio-4152, ¶ 23. [Cite as In re J.D., 2022-Ohio-2677.] ““‘The issue is not whether [the agency] could have done more, but

whether it did enough to satisfy the reasonableness standard under the statute.’””

Id., quoting In re S.F., 2d Dist. Montgomery No. 25318, 2013-Ohio-508, ¶ 21,

quoting In re Secrest, 2d Dist. Montgomery No. 19377, 2002-Ohio-7096, ¶ 13. See,

e.g., In re K.W., 8th Dist. Cuyahoga No. 106700, 2018-Ohio-3314, ¶ 45 (“Whether

an agency * * * made reasonable efforts pursuant to R.C. 2151.419 is based on the

circumstances of each case, not whether there was anything more the agency could

have done.”). “In determining whether reasonable efforts were made, the child’s

health and safety shall be paramount.” Id., quoting R.C. 2151.419(A)(1).

R.C. 2151.419(A)(1) states:

(1) Except as provided in division (A)(2) of this section, at any hearing held pursuant to section 2151.28, division (E) of section 2151.31, or section 2151.314, 2151.33, or 2151.353 of the Revised Code at which the court removes a child from the child’s home or continues the removal of a child from the child’s home, the court shall determine whether the public children services agency or private child placing agency that filed the complaint in the case, removed the child from home, has custody of the child, or will be given custody of the child has made reasonable efforts to prevent the removal of the child from the child’s home, to eliminate the continued removal of the child from the child’s home, or to make it possible for the child to return safely home. The agency shall have the burden of proving that it has made those reasonable efforts. If the agency removed the child from the home during an emergency in which the child could not safely remain at home and the agency did not have prior contact with the child, the court is not prohibited, solely because the agency did not make reasonable efforts during the emergency to prevent the removal of the child, from determining that the agency made those reasonable efforts. In determining whether reasonable efforts were made, the child’s health and safety shall be paramount. The caseworkers assigned to the children testified that reasonable

efforts were made to reunify Mother and the children. CCDCFS requested two six-

month extensions after temporary custody was issued in order to give Mother time

to rectify her issues. Mother continued to test positive for cocaine despite attending

and completing substance abuse treatment. Mother tested positive for cocaine four

days prior to the permanency hearing. Additionally, Mother did not remove Father

from her home and continued to spend time with him, nor did she provide any

documentation to support her assertion that she and Father were divorced or legally

separated. Mother also had not addressed how the children were going to be

adequately supervised while she was working. Finally, with exception of MK.C.,

none of the children wanted to be returned to Mother’s care. Given the facts

presented in this case, we cannot state that CCDCFS did not make reasonable efforts

to reunite the children with Mother.

Therefore, Mother’s third assignment of error is overruled.

Judgment 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, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and MICHELLE J. SHEEHAN, J., CONCUR