Opinion
L-23-1043
07-05-2023
In re A.E., K.E., K.J.
Jeremy G. Young, for appellee. Laurel A. Kendall, for appellant.
Trial Court No. JC 20281670
Jeremy G. Young, for appellee.
Laurel A. Kendall, for appellant.
DECISION AND JUDGMENT
ZMUDA, J.
I. Introduction
{¶ 1} Appellant, D.E. ("mother"), appeals the judgment of the Lucas County Court of Common Pleas, Juvenile Division, granting a motion for permanent custody filed by appellee, Lucas County Children Services ("LCCS"), thereby terminating her parental rights with respect to her minor children, A.E., K.J., and K.E. (the "children"). Finding no error below, we affirm.
The fathers of the children did not participate in the proceedings below, and thus are not parties to this appeal.
A. Facts and Procedural Background
{¶ 2} On October 9, 2020, LCCS filed its complaint in this case, alleging that three of mother's children, A.E., Ad.E., and K.J., were abused, neglected, and dependent based upon two referrals it received. The first referral was received on September 6, 2020, at which time LCCS was allegedly informed that mother tested positive for THC on four occasions while pregnant with K.J. At the time of the referral, K.J.'s father, W.J., was reportedly living with mother and her children. Approximately one month later, on October 7, 2020, LCCS received a second referral, informing LCCS that the Toledo Police Department responded to mother's residence on October 5, 2020, pursuant to a report of domestic violence involving mother and W.J.
During the pendency of this case, on May 20, 2022, legal custody of Ad.E. was accepted by Ad.E.'s paternal grandmother, R.S. Custody of Ad.E. is not before us in this appeal.
{¶ 3} In its complaint, LCCS requested an adjudication hearing within 30 days of the filing of its complaint, at which the juvenile court could determine whether A.E., Ad.E., and K.J. were abused, dependent and neglected. Additionally, LCCS sought an order from the juvenile court awarding it protective supervision of A.E., Ad.E., and K.J., and awarding temporary custody of those children to either a relative or the agency following a dispositional hearing.
{¶ 4} An emergency shelter care hearing was held before a magistrate on the day LCCS filed its complaint. At the hearing, the parents agreed to an award of protective supervision of A.E., Ad.E., and K.J. to LCCS. The magistrate found that pre-adjudicatory orders were required to protect A.E., Ad.E., and K.J. from immediate or threatened physical or emotional harm. Accordingly, the magistrate ordered LCCS to immediately provide protective supervision of A.E., Ad.E., and K.J. in mother's home, and ordered W.J. to vacate mother's home and have no contact with the children.
{¶ 5} Thereafter, on November 12, 2020, LCCS filed an amended complaint, alleging that it received a third referral one week earlier involving a "Code Three weapons call person with a gun" at mother's residence. According to the amended complaint, mother asked W.J. to leave her home and he refused. Eventually, E.H., a friend of mother's father, arrived to help mother. E.H. brandished a semi-automatic pistol, prompting W.J. to call 911. When police arrived, they discovered the firearm and ammunition and took E.H. into custody.
{¶ 6} On the same day LCCS filed its amended complaint, the parties appeared before the juvenile court for a shelter care hearing. At the hearing, the magistrate found that there was probable cause to believe that placement of A.E., Ad.E., and K.J. in shelter care outside of mother's residence was required to protect them from immediate or threatened physical or emotional harm. Consequently, A.E., Ad.E., and K.J. were placed in the interim temporary custody of LCCS. Mother was awarded supervised visitation and ordered to undergo a dual diagnostic assessment and submit to substance abuse screening.
{¶ 7} On December 17, 2020, the juvenile court held an adjudication and disposition hearing, at which mother consented to an adjudicatory finding of dependency and neglect as to A.E., Ad.E., and K.J. As a result, the juvenile court awarded temporary custody of A.E., Ad.E., and K.J. to LCCS.
{¶ 8} Following further pretrial discovery and motion practice, LCCS filed a motion for permanent custody of A.E. and K.J. on July 15, 2022. LCCS argued that (1) A.E. and K.J. could not or should not be placed with mother within a reasonable time under R.C. 2151.414(B)(1)(a), (2) A.E. and K.J. were in LCCS's custody for 12 or more months of a consecutive 22-month period under R.C. 2151.414(B)(1)(d), and (3) an award of permanent custody to LCCS was in the best interests of A.E. and K.J.
{¶ 9} Further, LCCS asserted these same arguments in a motion for permanent custody filed in case No. JC 21286082, pertaining to mother's youngest child, K.E., who was born in September 2021, during the pendency of these proceedings. LCCS moved to consolidate the two actions for reasons of judicial economy and the best interests of the children involved. On July 29, 2022, the juvenile court issued its judgment entry granting LCCS's motion to consolidate, thereby ordering case Nos. JC 21286082 "consolidated into JC 20281670."
{¶ 10} The matter proceeded to a hearing on LCCS's motion for permanent custody on January 27, 2023. For its first witness, LCCS called Mother to testify as on cross-examination.
{¶ 11} Mother began by testifying as to the incidents that gave rise to LCCS's involvement in this case. First, mother agreed that she tested positive for marijuana four times while being pregnant with K.J., thus prompting LCCS to file its complaint asking for protective supervision of A.E., Ad.E., and K.J.
{¶ 12} Second, mother agreed that, in October 2020, Toledo police received a call reporting domestic violence at mother's home involving mother and W.J. While mother disputed the claim of domestic violence, she agreed that W.J. drove away with K.J. in his vehicle after she asked him for money.
{¶ 13} Third, mother testified concerning an incident that occurred in November 2020. This incident was brought about as a consequence of W.J. refusing to leave mother's home. Mother acknowledged that she knew that W.J. was court-ordered to stay away from her home and have no contact with the children.
{¶ 14} Mother's father, who was in prison at the time, called mother during the dispute with W.J. After learning of the dispute, mother's father called E.H., who went to mother's home to try to get W.J. to leave. E.H. was armed at the time. When E.H. brandished his firearm, W.J. called 911 and summoned the police. When police arrived, they found ammunition and E.H.'s firearm under the kitchen stove. Consequently, police arrested E.H. and LCCS subsequently requested removal of A.E., Ad.E., and K.J. from mother's home.
{¶ 15} Following removal of the children from the home, mother was ordered to engage in case plan services, including a dual diagnostic assessment, submission to random urine screens, parenting service, and engagement in Healthy Baby Court. In sum, mother testified that she completed all of her case plan services.
{¶ 16} Mother testified that she completed the dual diagnostic assessment at Unison in September 2020. Indeed, mother indicated that she completed more than one assessment with Unison during the pendency of this case. As a result of the assessment, mother was diagnosed with generalized anxiety disorder, bipolar II, and post-traumatic stress disorder (PTSD).
{¶ 17} Mother was initially recommended for intensive outpatient treatment, but chose to complete domestic violence services instead. She testified that she was told not to do both programs at the same time, so she completed the domestic violence services first. She ultimately completed the intensive outpatient treatment in June 2021. Further, mother completed aftercare services in January 2022. Concerning urine screens, mother admitted that she submitted a urine screen that tested positive for alcohol.
{¶ 18} Mother further testified that, to her knowledge, she completed the parenting services required in her case plan by January 2022. Further, mother testified that she attended Healthy Baby Court on a monthly basis from December 2020 through February 2022. Mother stated that she wanted to continue to engage in Healthy Baby Court, but received no response when she emailed the Healthy Baby Court coordinator to inquire about court dates. Mother acknowledged that she did not contact her caseworker, the children's guardian ad litem, or the court to obtain further court dates for Healthy Baby Court.
{¶ 19} Mother also testified concerning her involvement with her children and their case plan services. As to her involvement with A.E., mother could not recall the names of A.E.'s teachers, doctors, or counselors. According to mother, the names of A.E.'s teachers, doctors, and counselors were never disclosed to her. When asked to identify A.E.'s current medications, mother replied, "I know they was thinking of Adderall and I did recommend that that wasn't a good medication because he had it before. They said it was on possible choices of changing that. I haven't heard anything back." LCCS eventually questioned mother as to the children's medical conditions, prompting the following exchange:
Q. What are A.E.'s mental health diagnoses?
A. I know its ADHD and that's all I have at this point.
Q. What, if any, medical diagnoses does K.J. have?
A. Sleep apnea.
Q. What, if any, medications is K.J. on?
A. 'm not informed of that.
Q. What, if any, medical diagnoses does K.E. have?
A. Not informed. I don't think he have any.
Q. What, if any, medications is K.E. on?
A. I don't think he's on any.
LCCS asked mother whether she was informed that she needed to start attending her children's medical appointments during a permanent planning conference in December 2021. Mother replied, "No, not that I'm aware of, no."
{¶ 20} Mother acknowledged during her testimony that she was ordered to take her children to protective daycare. She testified that she did not take the children to daycare all of the time because she was under the impression that she only needed to take them when she worked. Mother explained that the children only missed daycare when they were with her or her mother. Mother testified that, to her knowledge, the children were not prohibited from being with her mother. Mother indicated that she relied on family members to provide child care without incident prior to this case.
{¶ 21} Regarding the case plan services in which A.E. was engaged, mother testified, "I know he is in some type of mental health, they are looking into giving him medication. Last time I was told he did start medication, but that was all I was told of."
{¶ 22} While testifying, mother stated that she was reunified with her children during the pendency of these proceedings. This took place on March 22, 2022. Approximately two weeks later, on April 6, 2022, the children were removed from mother's home a second time due to safety concerns arising out of W.J.'s presence in the home and mother's failure to take the children to daycare as directed. Mother indicated that she was aware that the court ordered W.J. to have no contact with the children on more than one occasion. Nonetheless, mother allowed W.J. to visit with the children, including unsupervised contact with K.J.
{¶ 23} LCCS then questioned mother about how many times she visited her children after they were removed from her home. Mother conceded that she did not visit her children at all during the month of August 2021. Further, mother acknowledged that she did not call to cancel the visitations, reasoning that they would be automatically canceled if she did not arrive within an hour of the scheduled time. Mother later testified that she missed several visits with the children due to health reasons including a fractured foot, Covid, and surgery on her right hand. After fracturing her foot, mother was prescribed Oxycodone, Motrin, and Vicodin. Mother testified that these medications prevented her from traveling to the agency to visit her children. Moreover, mother explained that she did not visit her children after having surgery on her right hand, because the surgery made it impossible to pick up her children.
{¶ 24} Concerning her ongoing interaction with W.J., mother stated that she had no contact with W.J. since the second time the children were removed from her home. Mother further testified that she changed her phone number after being advised to do so, and that W.J. does not have her current phone number. Mother revealed that she initially refused to change her number because so many agencies had her number. She indicated that she agreed to change her phone number once she was advised that she could call the agencies and update her phone number.
{¶ 25} On redirect-examination, mother testified that it has been two years since her children were in her care. Mother stated that she has been diagnosed with bipolar II and major depressive disorder. According to mother, she used marijuana at the beginning of this case to self-medicate.
{¶ 26} Following mother's testimony, LCCS called its caseworker, Madison Williams, as its second witness. At the outset of her testimony, Williams explained that she was assigned to this case in March 2021, after a previous LCCS caseworker moved positions within the agency. Based upon her recollection, Williams stated that LCCS initiated involvement with mother and her children in October 2020, due to domestic violence concerns between W.J. and mother.
{¶ 27} Williams testified concerning the medical and behavioral issues present in the children. She stated that A.E. has been removed from about eight placements due to his behavior which included: hitting, biting, saying violent things about killing people and hurting people. Williams testified that A.E. has been diagnosed with attention deficit hyperactivity disorder (ADHD) and PTSD. Williams testified that A.E. is prescribed Methylphenidate and Clonidine. The Methylphenidate is prescribed for his ADHD and the Clonidine is for sleep, because A.E. suffers from nightmares.
{¶ 28} Williams explained that K.J. has been diagnosed with laryngomalacia and sleep apnea. She stated that K.J.'s condition is not problematic and is being monitored. Besides some behavioral issues, K.J. is doing well developmentally according to Williams.
{¶ 29} Williams further testified that K.E. has allergies, acid reflux, and breathing issues that are exacerbated by his allergies. Williams indicated that K.E. regularly suffers from ear infections, and thus had tubes put in his ears a few weeks prior to the hearing.
{¶ 30} As to mother's interest in the medical condition of her children, Williams testified that mother did attend the 90-day reviews where the behavior and medical condition of the children were discussed. However, Williams indicated that mother does not ask her about the children and how they are doing.
{¶ 31} Williams testified that when she was assigned the case involving the mother's children, mother was engaged in domestic violence classes, which mother completed several months thereafter. Williams testified that mother was recommended for Intensive Outpatient Treatment (IOP) and domestic violence services. Williams testified that, to her knowledge, mother completed both programs separately due to mother not having the time to complete both at the same time. Williams testified that mother completed both the IOP and domestic violence programs in June 2021, but still had an aftercare program to complete.
{¶ 32} Williams went on to indicate that mother missed several aftercare appointments. Williams explained that mother contracted Covid in August 2021, supposedly twice, so she missed aftercare appointments during that entire month. Williams further testified that mother then scheduled a few appointments to reengage in her aftercare, but missed those appointments as well.
{¶ 33} Williams stated that mother did not reengage in the aftercare program until November 2021. Mother ultimately completed the program in January 2022. After completing the program, mother was granted level 3 visitation with the children, beginning in February 2022.
{¶ 34} Williams explained that mother was making progress in her case plan. According to Williams, mother completed her domestic violence counseling, the IOP, and aftercare, and also secured housing. Consequently, LCCS decided to reunify the children with mother in March 2022. Further, mother's case plan progress impacted the juvenile court's denial of LCCS's request to remove K.E. when K.E. was born in September of 2021.
{¶ 35} Following mother's reunification with her children in March 2022, LCCS began receiving conflicting reports of the children's whereabouts during the day. Due to concerns about the well-being of the children, LCCS commissioned an assessment worker to conduct an investigation during which mother provided conflicting reports of the children's whereabouts. Williams testified that a search of mother's social media accounts unearthed videos and pictures depicting interaction between W.J. and the children during mother's level 3 visitations and also when mother was reunified with the children. Williams indicated that she confronted mother about the contact, and mother denied having any consensual interaction with W.J.
{¶ 36} In addition to the concerns about the well-being of the children, Williams testified that the children were not consistently attending daycare and A.E. was not enrolled in school during the time in which the children were reunified with mother.
{¶ 37} Due to these concerns, the children were removed from mother's home a second time on April 6, 2022. Williams testified that since the children were removed, mother was scheduled to visit the children on 35 occasions. Mother attended only nine such scheduled visitations. According to Williams, most of mother's missed visitations were no-call, no-shows, prompting LCCS to order mother to be at the agency one hour prior to the scheduled visitation or risk cancelation of the appointment. Williams further testified that A.E. has complained about mother missing her visits and has stated that he is disappointed in mother.
{¶ 38} Further, Williams testified regarding a 911 call that was made in October 2022, reporting a man in front of mother's house with a firearm. Williams was not aware of the man's identity. Nonetheless, Williams voiced concern because the 911 caller stated that there were multiple adults and children in the house, despite mother's testimony that she lives alone.
During her testimony, mother stated that she did not live at the home in October 2022.
{¶ 39} In sum, Williams testified that LCCS was seeking permanent custody of the children for several reasons. First, Williams stated that mother failed to provide a stable home for the children. Second, Williams complained that mother failed to keep the children from W.J. as ordered by the court. Third, Williams noted that K.J. and K.E. had been in foster care for the majority of their lives at the time of the hearing. Fourth, Williams testified that mother's behavioral concerns that prompted the initial removal of the children from her home were still present despite mother's completion of her case plan services. Fifth, Williams explained that mother has been "sporadic in her attendance of her appointments," causing Williams to be concerned about mother's ability to be attentive to the needs of the children and to provide them with a safe and appropriate home.
{¶ 40} Following Williams' testimony, mother called maternal grandmother, R.E., to testify. R.E. testified that she drove mother to appointments at Unison on two separate occasions. Further, R.E. testified that she saw the children at least every other day when they were in mother's custody. R.E. stated that she provided child care for the children "a few times." According to R.E., the children usually went to daycare.
{¶ 41} R.E. indicated that she accompanied mother to all of the children's medical appointments when mother had custody of the children. However, R.E. stated that she was told that she and mother could no longer attend the medical appointments because the children were in LCCS's care.
{¶ 42} At the conclusion of R.E.'s testimony, mother rested her case-in-chief. Thereafter, LCCS called the children's guardian ad litem, Alanna Paully, as its final witness. Paully stated that she was appointed guardian ad litem in this case on October 25, 2021.
{¶ 43} In Paully's opinion, mother was inconsistent in her visitations with the children. Paully testified that A.E. is struggling because he wants to see his mother and to be reunified with her and his siblings. Paully stated that K.J. and K.E. are doing well in their foster placements, and she noted that the foster parents are interested in adopting K.J. and K.E. Paully testified that the two foster mothers are in contact with Ad.E.'s paternal grandmother, and that the siblings visit each other. Additionally, Paully testified that she hopes that LCCS can find a stable placement for A.E. with foster parents who will also facilitate contact among the siblings.
{¶ 44} Paully testified that she visited mother at mother's residence in August 2022. According to Paully, it appeared that mother was living in the residence at the time because the home was furnished and utilities (internet and electricity) were connected. Further, Paully testified that she did not observe anything that would lead her to believe that someone else was living in the home with mother at the time.
{¶ 45} Paully testified that emails were sent to mother in May 2022 and August 2022 concerning Healthy Baby Court. Mother did not reply to those emails. Moreover, Paully stated that her phone number has never changed and that mother has never called her concerning Healthy Baby Court. Indeed, Paully stated that she has not heard from mother in "quite a while."
{¶ 46} Paully indicated her belief that the children should not be reunified with mother. When asked to explain her basis for this belief, Paully testified to several concerns. First, Paully was concerned with mother's lack of consistency in visiting her children. Paully stated that the last report she received from Unison demonstrated that mother only participated in half of the services she was offered. Second, Paully testified that she was concerned with mother's failure to take the children to daycare or enroll A.E. in school. Third, Paully was concerned that the children were still having contact with W.J. even though such contact was prohibited by the court. Fourth, Paully expressed concern that mother never called her to get permission to attend her children's medical procedures. Fifth, Paully testified that she had concerns about her final meeting with mother on December 1, 2022. During that meeting, which was conducted via teleconference due to mother's claim that she was immobile due to her broken foot, mother was "moving about." While speaking with mother, Paully witnessed a man and a child who appeared to be about ten-years-old walk past the camera. Immediately thereafter, Mother turned the sound off and turned her screen.
{¶ 47} Due to the foregoing concerns, Paully opined that mother would not be able to meet the needs of the children and that an award of permanent custody to LCCS was in the children's best interests.
{¶ 48} Following Paully's testimony, LCCS rested. Thereafter, the parties offered their closing arguments. Upon consideration of the parties' arguments, the juvenile court found that an award of permanent custody to LCCS was warranted under R.C. 2151.414.
{¶ 49} More specifically, the juvenile court determined that LCCS showed by clear and convincing evidence that the children could not or should not be placed with mother within a reasonable time under R.C. 2151.414(B)(1)(a). The court found, under R.C. 2151.414(E)(1), that "conditions still exist which caused removal and that the stability is not there to be reunified." The court stated that mother was aware of the conditions she needed to address in order to be reunited with the children, but failed to address those conditions. In particular, the court found that mother ignored the terms of her case plan by allowing W.J. to visit with the children despite ongoing domestic violence concerns and a court order prohibiting the family from any contact with him.
{¶ 50} Additionally, the court noted mother's failure to attend visitations with the children and found that mother demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with the children when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the children under R.C. 2151.414(E)(4). The court observed mother's lack of visitation with the children during the pendency of this action, and rejected mother's reasoning for failing to attend her visitations. Regarding mother's claim that she could not visit the children because she fractured her foot and had hand surgery, the court questioned how mother could have provided for the children in that situation if she would have had custody of them. Additionally, the court noted that mother only visited the children nine times out of a total of 35 scheduled visitation appointments.
{¶ 51} Further, the court found that R.C. 2151.414(B)(1)(d) was applicable because the children have been in the temporary custody of LCCS for 12 or more months of a consecutive 22-month period.
{¶ 52} Finally, the court turned to an evaluation of the best interests of the children based upon the factors set forth in R.C. 2151.414(D)(1). The court stated that K.E. and K.J. have been stable and doing well in their current placements. The court also recognized that A.E. loves his mother and wants to be with her, but found that mother's lack of visitation consistency was negatively impacting A.E. and contributing to the fact that A.E. was not yet in a legally secure placement. Thus, the court found that the potential harm that A.E. would experience if he were returned to mother "far outweighs his wishes."
{¶ 53} Based upon the evidence presented at the permanent custody hearing and its application of R.C. 2151.414 to that evidence, the juvenile court concluded that an award of permanent custody to LCCS would be in the children's best interests. Thus, the court granted LCCS's motion for permanent custody, thereby terminating mother's parental rights with respect to the children.
{¶ 54} Thereafter, on February 27, 2023, mother filed a pro se notice of appeal as to case No. JC 20281670, involving A.E. and K.J. On March 9, 2023, mother filed an amended notice of appeal through counsel. In the amended notice of appeal, mother identified A.E., K.J., and K.E. in her caption, and attached the juvenile court's judgment entry referencing case Nos. JC 20281670 and JC 21286082. Thereafter, the parties submitted their briefs and the matter is now decisional.
B. Assignments of Error
{¶ 55} On appeal, mother assigns the following errors for our review:
I. The trial court's finding that the children cannot be placed with mother within a reasonable time or should not be placed with [their] mother pursuant to R.C. 2151.414(B)(1) was not supported by clear and convincing evidence.
II. The trial court's finding that a grant of permanent custody to LCCS is in the children's best interest pursuant to R.C. 2151.414(D) was not supported by clear and convincing evidence.
II. Analysis
{¶ 56} In mother's first assignment of error, she argues that the evidence does not support the juvenile court's finding that the children cannot or should not be placed with her within a reasonable time under R.C. 2151.414(B)(1). In her second assignment of error, she contends that the evidence does not support the juvenile court's best interest determination under R.C. 2151.414(D). Because these arguments are interrelated, we will address them simultaneously.
{¶ 57} "A trial court's determination in a permanent custody case will not be reversed on appeal unless it is against the manifest weight of the evidence." In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th Dist. Franklin Nos. 03AP-1167, 03AP-1231, 2004-Ohio-3312, ¶ 28. In conducting a review on manifest weight, the reviewing court "weighs the evidence and all reasonable inferences, considers the credibility of the witnesses and determines whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered." State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 17.
{¶ 58} We recognize that, as the trier of fact, the juvenile court is in the best position to weigh the evidence and evaluate the testimony. In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994). Thus, "[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts." Eastley at ¶ 21, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, fn. 3, 461 N.E.2d 1273 (1984).
{¶ 59} "R.C. 2151.414 sets out specific findings a juvenile court must make before granting an agency's motion for permanent custody of a child." In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 18. In cases such as the case sub judice, the juvenile court "must find by clear and convincing evidence (1) that one or more of the conditions in R.C. 2151.414(B)(1)(a) through (e) applies and (2) that a grant of permanent custody is in the child's best interest." Id.
{¶ 60} In this case, the juvenile court found that the conditions in R.C. 2151.414(B)(1)(a) and (d) are applicable. R.C. 2151.414 provides, in relevant part:
(B)(1) Except as provided in division (B)(2) of this section, the 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 any of 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.
* * *
(d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, 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.
{¶ 61} In her first assignment of error, mother challenges the juvenile court's finding that the children cannot or should not be placed with her within a reasonable time under R.C. 2151.414(B)(1)(a). As to a juvenile court's determination that a 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, R.C. 2151.414(E) provides, in relevant part:
(E) * * * 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.
* * *
(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.
{¶ 62} The juvenile court found the above-referenced factors under R.C. 2151.414(E) applicable in this case. On appeal, mother argues that the juvenile court's findings under R.C. 2151.414(E)(1) and (4) were against the manifest weight of the evidence.
{¶ 63} Under R.C. 2151.414(E)(1), the court found that mother failed continuously and repeatedly to substantially remedy the conditions that led to the children's removal, namely mother's alcohol abuse problem and the threat to the children's safety arising out of contact with W.J. The court noted that mother's alcohol use continued after she completed substance abuse treatment, and the court also observed that mother continued to permit W.J. to interact with the children after mother completed her domestic violence services and the court issued its order prohibiting any contact between W.J. and the children. The court found that, despite LCCS's provision of reasonable case planning services designed to help mother address these issues, and notwithstanding mother's technical compliance with those services, mother's substance abuse continued and mother "has not internalized the lessons taught by her providers."
{¶ 64} Upon review, we find that the juvenile court's findings under R.C. 2151.414(E)(1) are supported by the record. Indeed, mother acknowledged during her testimony at the permanent custody hearing that she tested positive for alcohol in a urine screen she submitted in August 2022, several months after the children were removed from her home the second time. Further, mother acknowledged that she continued to have contact with W.J. after LCCS received reports that the children were with W.J. in April 2022. While mother denied that she initiated the contact, she also initially refused to change her number and take steps to avoid further contact with W.J. Additionally, Williams testified that she searched mother's social media accounts and discovered videos and pictures depicting interaction between W.J. and the children during her level 3 visitations and also when mother was reunified with the children.
{¶ 65} In arguing that the juvenile court's finding under R.C. 2151.414(E)(1) was not supported by the record, mother primarily emphasizes that she completed her case plan services, including substance abuse and domestic violence programs. The juvenile court acknowledged the fact that mother technically completed her case plan services. Nonetheless, the court determined that mother's completion of those services had no appreciable effect on mother's behavior, because mother failed to internalize the lessons taught during the substance abuse and domestic violence programs, as evidenced by the fact that mother continued to use alcohol and permit W.J. to interact with her and the children.
{¶ 66} "[U]nder R.C. 2151.414(E)(1), the crux of the analysis is not on the case plan services themselves, but on the desired effect of those services. The services are provided to the parent 'for the purpose of changing parental conduct to allow them to resume and maintain parental duties.'" In re C.S., 6th Dist. Lucas No. L-23-1015, 2023-Ohio-1662, ¶ 49, quoting R.C. 2151.414(E)(1).
{¶ 67} For mother to remedy the conditions that led to the children's removal from her custody in this case, she was required to stop using alcohol and exposing the children to W.J., not merely attend programs to teach her how to do so. The aforementioned evidence provided by LCCS at the permanent custody hearing supports the juvenile court's assessment that mother continued to use alcohol and expose the children to W.J. after completing her case plan services. Consequently, we find that the juvenile court's determination that mother failed to remedy the problems that caused the children to be placed outside of her home under R.C. 2151.414(E)(1) was not against the manifest weight of the evidence.
{¶ 68} Our conclusion that the juvenile court's finding under R.C. 2151.414(E)(1) was not against the manifest weight of the evidence eliminates the need to review the juvenile court's finding under R.C. 2151.414(E)(4). "Once the trial court finds from all relevant evidence that one of the eight [R.C. 2151.414(E)] factors exists, it then must consider whether permanent commitment is in the best interest of the child. R.C. 2151.414(B)." In re William S., 75 Ohio St.3d 95, 99, 661 N.E.2d 738 (1996). Put differently, "[t]he existence of one factor alone will support a finding that the child cannot be placed with the parent within a reasonable time." In re G.R., 5th Dist. Stark Nos. 2022CA00146, 2022CA00147, 2023-Ohio-1442, ¶ 53, citing William S. at 99; see also In re C.N., 6th Dist. Lucas No. L-22-1194, 2023-Ohio-659, ¶ 53 (stating that the juvenile court "was only required to make findings under one subsection of R.C. 2151.414(E) to support its decision").
{¶ 69} While we need not review the juvenile court's finding under R.C. 2151.414(E)(4), we note that the record supports the juvenile court's conclusion under that subsection that mother demonstrated a lack of commitment toward the children by failing to regularly support, visit, or communicate with the children. Specifically, Williams testified that mother was scheduled to visit the children on 35 occasions, but only attended nine such appointments. Moreover, Williams stated that most of mother's missed visitations were no-call, no-shows, and that the missed visitations caused A.E. distress and led A.E. to express disappointment in mother.
{¶ 70} Upon making its findings under R.C. 2151.414(E)(1) and (4), the juvenile court was required to find that the children cannot be placed with mother within a reasonable time or should not be placed with mother under R.C. 2151.414(B)(1)(a). See R.C. 2151.414(E) ("If the court determines, by clear and convincing evidence, * * * 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."). Having found that the juvenile court's determinations under R.C. 2151.414(E)(1) and (4) were supported by the record, we find no error in the court's conclusion that the children cannot be placed with mother within a reasonable time or should not be placed with mother under R.C. 2151.414(B)(1)(a).
{¶ 71} Notably, mother does not challenge the juvenile court's determination, under R.C. 2151.414(B)(1)(d), that the children "have been in the temporary custody of LCCS for twelve or more months of a consecutive twenty-two-month period." In its judgment entry granting LCCS's motion for permanent custody, the juvenile court noted that A.E. and K.J. were in the temporary custody of LCCS "since November 2020 (minus the two months of March and April 2022, the time they briefly returned to their mother's custody." Moreover, the court observed that K.E. "was placed in LCCS' temporary custody in October 2021."
{¶ 72} These findings, which are consistent with the evidence presented at the permanent custody hearing, establish that A.E. and K.J. were indeed in LCCS's temporary custody for 12 or more months of a consecutive 22-month period, and thus the juvenile court's finding as to those children under R.C. 2151.414(B)(1)(d) was not against the manifest weight of the evidence. However, the juvenile court's finding was erroneous as to K.E., because K.E. was only in the temporary custody of LCCS for nine months on the day that LCCS filed its motion for permanent custody. It appears from the record that the juvenile court's finding as to K.E. was based on an erroneous inclusion of the six-month time period that passed between the filing of LCCS's permanent custody motion and the permanent custody hearing. In In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, the Ohio Supreme Court clarified that this time period does not count toward the 12 months required under R.C. 2151.414(B)(1)(d), as follows:
[B]efore a public children-services agency or private child-placing agency can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child must have been in the temporary custody of an agency for at least 12 months of a consecutive 22-month period. In other words, the time that passes between the filing of a motion for permanent custody and the permanent-custody hearing does not count toward the 12-month period set forth in R.C. 2151.414(B)(1)(d).Id. at ¶ 26.
{¶ 73} Consequently, we find that the juvenile court's determination under R.C. 2151.414(B)(1)(d) permitted the juvenile court to proceed directly to a best interest analysis as to A.E. and K.J., independent of any determination under R.C. 2151.414(B)(1)(a). Thus, for this additional reason, we find no merit to mother's first assignment of error as it relates to A.E. and K.J.
{¶ 74} Accordingly, mother's first assignment of error is not well-taken.
{¶ 75} In her second assignment of error, mother challenges the juvenile court's best interest determination. Following the permanent custody hearing in this case, the juvenile court found that an award of permanent custody to LCCS was in the children's best interests under R.C. 2151.414(D)(1), which provides, in relevant part:
(D)(1) In 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.
{¶ 76} In considering the child's best interest, the juvenile court is not required to discuss each of the factors under R.C. 2151.414(D)(1)(a) through (e), and the factors outlined therein are not exhaustive. In re A.M., supra, Slip Opinion No. 2020-Ohio-5102, at ¶ 31. Indeed, "[consideration is all the statute requires." Id.
{¶ 77} Here, the juvenile court expressly indicated its consideration of the children's best interests under R.C. 2151.414(D)(1) in its judgment entry. Indeed, the juvenile court did, in fact, address all five of the factors outlined in R.C. 2151.414(D)(1), finding that the first four factors weighed in favor of granting permanent custody to LCCS.
The juvenile court did not find R.C. 2151.414(E)(7) through (E)(11) applicable to mother, and thus did not examine the fifth factor under R.C. 2151.414(D)(1)(e) as to mother.
{¶ 78} As to the first factor, the court found K.J. and K.E. have been in foster care for most of their lives and that the children are well adjusted and satisfied in their current placements. Further, the court found that mother's interaction and interrelationship with the children was negatively impacted by her failure to make the children a priority, as demonstrated by how frequently she missed her visitation appointments with the children.
{¶ 79} Concerning the second factor, the juvenile court noted that K.J. and K.E. were too young to express their wishes as to reunification with mother. The court then "carefully considered" A.E.'s desire to reunite with mother and weighed that desire against the potential harm such reunification would have on A.E. Ultimately, the court concluded that the potential harm brought about by mother's behavior in failing to visit her children and follow through with her case plan services "far outweighs [A.E.'s] wishes."
{¶ 80} Regarding the third factor, the juvenile court noted that A.E. spent almost one-third of his life in the temporary custody of LCCS. Further, the court observed that K.J. and K.E. have each spent nearly their entire lives in LCCS's temporary custody.
{¶ 81} As to the fourth factor, the juvenile court determined that mother could not provide a secure permanent placement for the children based upon her inconsistency in visiting her children, failure to enroll A.E. in school, failure to attend the children's medical appointments, and failure to take the children to daycare as directed. By contrast, the court found that K.J. and K.E. were receiving a secure permanent placement while in foster care, and that A.E.'s need for such a placement could only be satisfied with an award of permanent custody to LCCS.
{¶ 82} Having reviewed the record in its entirety, we find that the juvenile court's evaluation of the best interest factors under R.C. 2151.414(D)(1) through (4) is supported by the record and consistent with the view articulated by the children's guardian ad litem. Given the evidence introduced by LCCS at the permanent custody hearing, we find that clear and convincing evidence supports the juvenile court's determination that an award of permanent custody to LCCS was in the children's best interests under R.C. 2151.414(D)(1). Thus, we find that the juvenile court's best interest determination was not against the manifest weight of the evidence. Accordingly, mother's second assignment of error is not well-taken.
III. Conclusion
{¶ 83} In light of the foregoing, we conclude that the juvenile court did not lose its way in finding that the children cannot be placed with mother within a reasonable time or should not be placed with mother under R.C. 2151.414(B)(1)(a). Further, the court properly found that A.E. and K.J. were in LCCS's temporary custody for 12 or more months of a consecutive 22-month period under R.C. 2151.414(B)(1)(d). Finally, the record supports the juvenile court's best interest determination under R.C. 2151.414(D)(1). Consequently, the juvenile court did not err in granting LCCS's motion for permanent custody and terminating mother's parental rights over the children.
{¶ 84} The judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Mother is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. Gene A. Zmuda, J. Charles E. Sulek, J. CONCUR.