[Cite as In re K.H., 2020-Ohio-776.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: K.H. C.A. No. 29555
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-17-04-0262
DECISION AND JOURNAL ENTRY
Dated: March 4, 2020
CARR, Presiding Judge.
{¶1} Appellant, C.C. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her
minor child in the permanent custody of Summit County Children Services Board (“CSB”). This
Court affirms.
I.
{¶2} Mother is the biological mother of K.H., born April 14, 2017. The child’s father
did not participate in the trial court proceedings and did not appeal from the judgment.
{¶3} On April 17, 2017, CSB filed a complaint to allege that K.H. was a dependent
child because Mother’s three older children had been placed in the legal custody of other adults
and she continued to suffer from the same parenting problems. CSB’s greatest concern was the
instability in Mother’s life and her tendency to rely on abusive men and other adults who take
advantage of her and put her children in harm’s way. One of Mother’s older children was 2
removed because Mother failed to protect the child from severe physical abuse in the home.
K.H. was later adjudicated a dependent child and placed in the temporary custody of CSB.
{¶4} During this case, Mother engaged in counseling to help her develop insight and
set boundaries to protect herself and her children from inappropriate adults. She also worked on
improving her problem-solving skills. Although Mother complied with many of the
requirements of the case plan for more than one year, she failed to demonstrate the ability to
implement much of what she had learned. Mother continued to need the assistance of service
providers to redirect her behavior and help her care for K.H. during visits. Mother also
continued her unhealthy relationship with an abusive man.
{¶5} On March 26, 2019, CSB moved for permanent custody of K.H. Mother
alternatively moved for legal custody of the child, as did a nonrelative who has legal custody of
one of the K.H.’s older half-siblings. Following a hearing on the competing dispositional
motions, the trial court found that K.H. had been in the temporary custody of CSB for at least 12
months of a consecutive 22-month period and that permanent custody was in the child’s best
interest. Mother appeals and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(D) WHEN [CSB] HAD NOT HAD AGENCY INVOLVEMENT WITH K.H. FOR AT LEAST TWENTY-TWO CONSECUTIVE MONTHS.
{¶6} Through her first assignment of error, Mother challenges the trial court’s finding
that the “12 of 22” prong of the permanent custody test was satisfied under R.C.
2151.414(B)(1)(d). R.C. 2151.414(B)(1)(d) provides that an agency establishes the first prong of
the permanent custody test if it proves that “[t]he child has been in the temporary custody of one 3
or more public children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period[.]”
{¶7} Mother makes a legal argument, that this Court has previously rejected, that the
“12 of 22” provision is satisfied only if the child has been in temporary custody of a children
services agency for at least 12 months of a consecutive 22-month period of agency involvement.
This Court explicitly rejected this legal interpretation of the language of R.C. 2151.414(B)(1)(d)
in In re J.C., 9th Dist. Summit No. 28865, 2018-Ohio-2555, ¶ 10-13. This legal issue is also
currently pending before the Ohio Supreme Court on a certified conflict in In re N.M.P.,
Supreme Court Case No. 2018-1842.
{¶8} Even if this Court were to accept Mother’s interpretation of R.C.
2151.414(B)(1)(d), she has failed to demonstrate any potential error under the undisputed facts
of this case. At the time CSB moved for permanent custody, K.H. had been in its temporary
custody for 21 months and the agency had been involved with the family for 23 consecutive
months since it filed the complaint and assumed emergency temporary custody of the child.
Because Mother cannot demonstrate reversible error in the trial court’s “12 of 22” finding, her
first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN PLACING K.H. IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} Mother’s second assignment of error is that the trial court’s decision was against
the manifest weight of the evidence. In considering whether the juvenile court's judgment is
against the manifest weight of the evidence, this Court “weighs the evidence and all reasonable 4
inferences, considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of
justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal quotations
and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When
weighing the evidence, this Court “must always be mindful of the presumption in favor of the
finder of fact.” Id. at ¶ 21.
{¶10} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child in a parent’s custody has been adjudicated abused, neglected, or dependent
on three separate occasions; or the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E);
and (2) that the grant of permanent custody to the agency is in the best interest of the child, based
on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also
In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶11} The trial court found that the first prong of the permanent custody test was
satisfied because K.H. had been in the temporary custody of CSB for at least 12 months of a
consecutive 22-month period. See R.C. 2151.414(B)(1)(d). As explained in this Court’s
disposition of Mother’s first assignment of error, that finding was fully supported by the
evidence in the record.
{¶12} Next, the trial court found that permanent custody was in the best interest of K.H.
Mother’s best interest argument focuses primarily on evidence that she had made progress on the 5
reunification goals of the case plan. Although a parent’s case plan compliance may be relevant
to the child’s best interest, it is not dispositive. In re G.L.S., 9th Dist. Summit No. 28874, 2018-
Ohio-1606, ¶ 20, citing In re G.A., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13.
{¶13} Moreover, although Mother had made some progress on the case plan goals,
several witnesses expressed concern that Mother could not provide an appropriate home for K.H.
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[Cite as In re K.H., 2020-Ohio-776.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: K.H. C.A. No. 29555
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-17-04-0262
DECISION AND JOURNAL ENTRY
Dated: March 4, 2020
CARR, Presiding Judge.
{¶1} Appellant, C.C. (“Mother”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her
minor child in the permanent custody of Summit County Children Services Board (“CSB”). This
Court affirms.
I.
{¶2} Mother is the biological mother of K.H., born April 14, 2017. The child’s father
did not participate in the trial court proceedings and did not appeal from the judgment.
{¶3} On April 17, 2017, CSB filed a complaint to allege that K.H. was a dependent
child because Mother’s three older children had been placed in the legal custody of other adults
and she continued to suffer from the same parenting problems. CSB’s greatest concern was the
instability in Mother’s life and her tendency to rely on abusive men and other adults who take
advantage of her and put her children in harm’s way. One of Mother’s older children was 2
removed because Mother failed to protect the child from severe physical abuse in the home.
K.H. was later adjudicated a dependent child and placed in the temporary custody of CSB.
{¶4} During this case, Mother engaged in counseling to help her develop insight and
set boundaries to protect herself and her children from inappropriate adults. She also worked on
improving her problem-solving skills. Although Mother complied with many of the
requirements of the case plan for more than one year, she failed to demonstrate the ability to
implement much of what she had learned. Mother continued to need the assistance of service
providers to redirect her behavior and help her care for K.H. during visits. Mother also
continued her unhealthy relationship with an abusive man.
{¶5} On March 26, 2019, CSB moved for permanent custody of K.H. Mother
alternatively moved for legal custody of the child, as did a nonrelative who has legal custody of
one of the K.H.’s older half-siblings. Following a hearing on the competing dispositional
motions, the trial court found that K.H. had been in the temporary custody of CSB for at least 12
months of a consecutive 22-month period and that permanent custody was in the child’s best
interest. Mother appeals and raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(D) WHEN [CSB] HAD NOT HAD AGENCY INVOLVEMENT WITH K.H. FOR AT LEAST TWENTY-TWO CONSECUTIVE MONTHS.
{¶6} Through her first assignment of error, Mother challenges the trial court’s finding
that the “12 of 22” prong of the permanent custody test was satisfied under R.C.
2151.414(B)(1)(d). R.C. 2151.414(B)(1)(d) provides that an agency establishes the first prong of
the permanent custody test if it proves that “[t]he child has been in the temporary custody of one 3
or more public children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period[.]”
{¶7} Mother makes a legal argument, that this Court has previously rejected, that the
“12 of 22” provision is satisfied only if the child has been in temporary custody of a children
services agency for at least 12 months of a consecutive 22-month period of agency involvement.
This Court explicitly rejected this legal interpretation of the language of R.C. 2151.414(B)(1)(d)
in In re J.C., 9th Dist. Summit No. 28865, 2018-Ohio-2555, ¶ 10-13. This legal issue is also
currently pending before the Ohio Supreme Court on a certified conflict in In re N.M.P.,
Supreme Court Case No. 2018-1842.
{¶8} Even if this Court were to accept Mother’s interpretation of R.C.
2151.414(B)(1)(d), she has failed to demonstrate any potential error under the undisputed facts
of this case. At the time CSB moved for permanent custody, K.H. had been in its temporary
custody for 21 months and the agency had been involved with the family for 23 consecutive
months since it filed the complaint and assumed emergency temporary custody of the child.
Because Mother cannot demonstrate reversible error in the trial court’s “12 of 22” finding, her
first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN PLACING K.H. IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶9} Mother’s second assignment of error is that the trial court’s decision was against
the manifest weight of the evidence. In considering whether the juvenile court's judgment is
against the manifest weight of the evidence, this Court “weighs the evidence and all reasonable 4
inferences, considers the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of
justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal quotations
and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When
weighing the evidence, this Court “must always be mindful of the presumption in favor of the
finder of fact.” Id. at ¶ 21.
{¶10} Before a juvenile court may terminate parental rights and award permanent
custody of a child to a proper moving agency it must find clear and convincing evidence of both
prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the
temporary custody of the agency for at least 12 months of a consecutive 22-month period; the
child or another child in a parent’s custody has been adjudicated abused, neglected, or dependent
on three separate occasions; or the child cannot be placed with either parent within a reasonable
time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E);
and (2) that the grant of permanent custody to the agency is in the best interest of the child, based
on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also
In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶11} The trial court found that the first prong of the permanent custody test was
satisfied because K.H. had been in the temporary custody of CSB for at least 12 months of a
consecutive 22-month period. See R.C. 2151.414(B)(1)(d). As explained in this Court’s
disposition of Mother’s first assignment of error, that finding was fully supported by the
evidence in the record.
{¶12} Next, the trial court found that permanent custody was in the best interest of K.H.
Mother’s best interest argument focuses primarily on evidence that she had made progress on the 5
reunification goals of the case plan. Although a parent’s case plan compliance may be relevant
to the child’s best interest, it is not dispositive. In re G.L.S., 9th Dist. Summit No. 28874, 2018-
Ohio-1606, ¶ 20, citing In re G.A., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13.
{¶13} Moreover, although Mother had made some progress on the case plan goals,
several witnesses expressed concern that Mother could not provide an appropriate home for K.H.
Mother had a history of relying on violent men and allowing them to control her life and put her
children at risk. Despite engaging in counseling to develop insight into how these relationship
patterns affected the safety of herself and her children, Mother continued her romantic
relationship with the alleged father of K.H., whom she admitted was a drug abuser who was also
physically violent with her. Moreover, K.H.’s alleged father had never established paternity of
K.H. and refused to cooperate with CSB or have any involvement in this case.
{¶14} When determining the child’s best interest under R.C. 2151.414(D), the juvenile
court must consider all relevant factors, including the interaction and interrelationships of the
child, the child’s wishes, the custodial history of the child, the need for permanence in the child’s
life, and whether any of the factors set forth in R.C. 2151.414(E)(7) to (11) apply to the facts of
the case. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-
6284, ¶ 11. None of the factors in R.C. 2151.414(E)(7) to (11) apply to the facts of the case.
{¶15} Mother’s interaction with K.H. was initially limited to supervised visits. Mother’s
visits briefly expanded to unsupervised visits in her home, but the visits were later relocated and
supervised by CSB due to concerns that Mother was not appropriately feeding or caring for K.H.
K.H. has a swallowing disorder that requires her to eat thickened foods and she also exhibits
several developmental delays. Although Mother attended most of K.H.’s medical appointments,
she did not demonstrate the ability to properly feed the child or to address her other special 6
needs. The caseworker testified that she had to repeatedly redirect Mother’s behavior during
supervised visits.
{¶16} Because K.H. was only two years old at the time of the hearing, the guardian ad
litem spoke on her behalf. She opined that permanent custody was in the child’s best interest
because Mother continued to lack insight into her problems as a parent and had never accepted
responsibility for the removal of K.H. from her custody. The guardian also expressed concern
that Mother had not been honest about her continuing relationship with the alleged father of K.H.
{¶17} K.H. has spent her entire life outside of Mother’s custody. She was released from
the hospital after her birth and placed in the emergency temporary custody of CSB and then its
temporary custody. She remained in the agency’s custody throughout this case and has resided
with two different foster families.
{¶18} Because K.H. had spent her entire two-year life living in temporary placements,
she needed a legally secure permanent placement. Mother was not prepared to provide her with
a stable home and CSB had been unable to find any suitable relatives who were willing and able
to do so. Although the legal custodians of one of Mother’s older children filed a motion for
legal custody near the end of this case, they had not established a relationship with K.H. but had
met her only a few times.
{¶19} Mother has failed to demonstrate that the trial court lost its way in concluding that
permanent custody was in the best interest of K.H. Mother’s second assignment of error is
overruled.
III.
{¶20} Mother’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is affirmed. 7
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR FOR THE COURT
HENSAL, J. SCHAFER, J. CONCUR.
APPEARANCES:
SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant Prosecuting Attorney, for Appellee.
CHRISTINA BOLLMAN, Guardian ad Litem.