Opinion
L-22-1300
05-09-2023
In re Ay.R., Al.R.
Rebecca L. West-Estell, for appellee. Autumn D. Adams, for appellant.
Trial Court No. 2028056
Rebecca L. West-Estell, for appellee.
Autumn D. Adams, for appellant.
DECISION AND JUDGMENT
DUHART, J.
{¶ 1} This is an appeal by appellant, M.W., the father of children, Ay.R. and Al.R., from the November 4, 2022 judgment of the Lucas County Court of Common Pleas, Juvenile Division, granting permanent custody of Ay.R. and Al.R. to appellee Lucas County Children Services ("LCCS" or "the agency"). For the reasons that follow, we affirm the judgment.
{¶ 2} Appellant sets forth one assignment of error:
The Trial Court failed to utilize the least restrictive placement for the children when it granted permanent custody to LCCS.
Background
{¶ 3} Appellant is the father of Ay.R., who was born in May 2012, and Al.R., who was born in March 2016. The mother is A.R., who also has another child, Ar.R., by father, C.S. Mother, Ar.R. and C.S. are not involved in this appeal.
{¶ 4} Early on November 9, 2020, police responded to a report of shots fired, and saw a suspect run into mother's apartment. Mother would not initially cooperate with police, refusing to allow the police to enter her apartment for nearly an hour. When the police did gain entry into the apartment, the police found no food, no furniture, bugs, an unsecured firearm around mother's three children, and the suspect. Mother was noticeably intoxicated. The police took the three children to the agency. Appellant was contacted, as his phone number was in Ay.R.'s phone.
While Ar.R. is not involved in this appeal, she is included in the reference to "children."
{¶ 5} That same day, LCCS filed a complaint in dependency, neglect and abuse concerning the children, and a shelter care hearing was requested and held. LCCS was awarded interim temporary custody of the children, and the children were placed a relative ("the caregiver"). While appellant appeared for the staffing and requested that Ay.R. and Al.R. be placed with him, out of concern for his past domestic violence and drug trafficking charges and prior history with the agency, Ay.R. and Al.R. were not placed with him.
{¶ 6} On March 29, 2021, an adjudication hearing was held; mother and appellant were present. Mother testified that appellant had contact with Ay.R. and Al.R. "[a]bout 10 percent. It was hit or miss. When he chose to, he chose to." Mother stated appellant bought Ay.R. a phone, and appellant pays for the phone. The court found the children were dependent and abused.
{¶ 7} A dispositional hearing was held on June 28, 2021; appellant was not present. Caseworker Marco Quimbaya testified, with respect to appellant, that case plan services were identified, including a dual diagnostic assessment for mental health and substance abuse was recommended for appellant. Appellant completed the assessment and no mental health or substance abuse services were recommended. It was also recommended that appellant do a domestic violence batterers assessment, but appellant did not show up or complete it. Quimbaya had not seen appellant since April 7, 2021, at the last home visit, and after that, appellant's whereabouts were unknown. Quimbaya believed appellant last communicated with Ay.R. and Al.R. in late April 2021. Quimbaya attempted to contact appellant three times in May and in June 2021, but no contact was made. Quimbaya learned appellant had charges pending and was in jail.
{¶ 8} Quimbaya reported the children were doing very well in their placement with the caregiver, and Ay.R. and Al.R. are in counseling biweekly. The court found it was in the children's best interests for temporary custody to be awarded to the caregiver.
{¶ 9} On November 9, 2021, the annual review hearing was held, and it was noted LCCS filed a motion to extend its temporary custody. Concerning appellant, caseworker Quimbaya testified appellant was still incarcerated on kidnapping charges and therefore did not complete domestic violence classes. Appellant had virtual visitation with Ay.R. and Al.R., and there were no problems. The court found it was in the children's best interests for temporary custody to be extended for six months.
{¶ 10} In January 2022, a hearing was held and the parties agreed that the mother was allowed to start unsupervised parenting time immediately.
{¶ 11} On June 28, 2022, a motion for disposition change was scheduled, but mother failed to appear. The court found it was in the children's best interests to terminate the temporary custody award to the caregiver, and to award temporary custody to LCCS.
{¶ 12} On July 19, 2022, LCCS filed a motion for permanent custody of the children. On October 24, 2022, the permanent custody hearing was held; mother and appellant did not attend. The court issued its judgment entry on November 4, 2022, awarding permanent custody of the children to LCCS. Appellant appealed.
The Hearing
{¶ 13} The agency called three witnesses to testify at the permanent custody hearing, caseworker Quimbaya, the caregiver and the Court Appointed Special Advocate/ Guardian Ad Litem ("CASA" or "GAL"). The relevant testimony is summarized below.
The Caseworker
{¶ 14} Marco Quimbaya testified he is employed by LCCS and has been the ongoing caseworker for the children since they came into care in November 2020. Appellant is the legal father of Ay.R. and Al.R.
{¶ 15} As to case plan services for appellant, a dual diagnostic assessment for mental health and substance abuse was recommended, as was domestic violence batterers and perhaps parenting. Appellant completed the assessment and no mental health or substance abuse services were recommended. Appellant was arrested for abduction before he started the program for domestic violence batterers. Appellant did time for the abduction charge, was released, and was arrested again for another abduction charge. Appellant is incarcerated and will be until 2025, so he never completed his domestic violence services. Quimbaya thought that the last time he attempted to contact appellant was in May 2021.
{¶ 16} Quimbaya testified mother was recommended for numerous case plan services and completed all of them successfully, although mother was not always cooperative and "kind of fought throughout the case." Then, in March 2022, mother was drug tested three times and was positive for alcohol and marijuana. Mother smoked marijuana daily, as she had a medical marijuana card from a doctor. However, the concern was that mother was testing positive for alcohol, and she had unsupervised visits and overnight visits at her home with the children.
{¶ 17} On April 1, 2022, Quimbaya informed mother that she had to do another diagnostic assessment and she was going from unsupervised visits with her children to supervised visits with a guard in the room until further notice. At that point, mother told Quimbaya that she would not do that, either give her the children or forget it, she was not cooperating anymore, she was done. Quimbaya gave mother several weeks to think about her decision, but mother did not respond to him or make herself available, so she was removed from the case plan. In late April 2022, mother texted Quimbaya telling him to stop coming out to see her, stop texting and calling or she was going to file charges.
{¶ 18} With respect to the children, Quimbaya testified the children were placed with the caregiver at the beginning of the case, and have been there since that time. Ay.R. and Al.R. were referred to and attended counseling; Ay.R. continues to go, about twice a month, but Al.R. graduated from counseling and no longer has a need for it. The children are thriving in their placement, they are doing great at school, and they are involved in numerous activities. Ay.R. and Al.R. only talk about appellant when Quimbaya brings it up. The children are bonded with the caregiver, they are stable and all of their needs are being met. If the children become available for adoption, the caregiver is willing to adopt them. The agency is requesting permanent custody of the children so they can be adopted by the caregiver, as that is in the children's best interests.
{¶ 19} When Quimbaya was asked about mother's suggestion that legal custody of the children be given to the caregiver, so mother can visit the children, rather than permanent custody to the agency, he responded mother abandoned the children and has not seen them since March 27, 2022, well over 100 days, and Ay.R. is really upset that mother abandoned him. As to appellant, he has not attempted to visit with Ay.R. and Al.R. in over 90 days, so Ay.R. and Al.R were abandoned by appellant. The caregiver told Quimbaya if she adopts the children, she would be willing to allow the children to visit with their parents, if it is a safe situation.
{¶ 20} Quimbaya mentioned that the children had been removed from mother's home prior to this case, and he believes the children were placed with the caregiver then too.
The Caregiver
{¶ 21} The caregiver testified the children were removed from mother's care in June 2017, because mother was unable to provide for the children's needs, and the children were placed with their grandmother for just over a year. The children were then returned to mother. The caregiver observed that mother was 16 years old when Ay.R. was born.
{¶ 22} After the children were returned to mother in June 2018, the caregiver transported them every other weekend for two years to visit with their grandmother, as the grandmother had a five-year protection order against mother. The children spent those weekends with grandmother and the caregiver. Grandmother now has dementia.
{¶ 23} The children were placed with the caregiver on November 9, 2020, and were healthy but traumatized because they were exposed to domestic violence and physical discipline. Ay.R., who was eight years old, was consumed with anxiety, overly concerned with adult issues and "there was some parentification," where the roles were somewhat reversed. Ay.R. had a lot of responsibility and a long list of chores, including clearing the table, doing the dishes, sweeping, folding laundry, changing diapers and rubbing mother's feet. Al.R., who was four and one-half years old, often spoke of whoopings, and being hit with a shoe, belt or hand. Al.R. was still soiling her pants.
{¶ 24} The caregiver witnessed Ay.R. belittling Al.R., which took a toll on Al.R. It took a great effort to end the belittling and put-downs. The caregiver remarked this is a learned behavior, and she wondered if Ay.R. was belittled at some point.
{¶ 25} The children are now doing very well. The caregiver takes the children to visit grandmother about twice a week, and the caregiver supervises the visits.
{¶ 26} With respect to appellant, the last time he reached out to the caregiver was on Ay.R.'s birthday in May 2021. The caregiver encouraged Ay.R. to write letter to appellant while appellant was in jail. Ay.R. wrote a letter, and appellant wrote back, around Christmas 2021, but Ay.R. has not received a letter from appellant since. Appellant has not reached out at all to Al.R.
{¶ 27} The caregiver was asked if she would be willing to adopt the children if the agency is granted permanent custody, and she responded yes. The caregiver was then asked if she would she be willing to take legal custody of the children if the court decides it is in the children's best interests, and she replied, yes, for their best interests, but preferably not. The caregiver reasoned that she would prefer to adopt, as it is in the children's best interests for mental health, emotional well-being and permanency. The caregiver testified that the children told her that during mother's unsupervised visits with the children, mother would say detrimental things to them about the caregiver, like the caregiver really doesn't care about them, the caregiver just wants to get back at mother, or the caregiver does not take good care of them. This caused confusion with the children, and made it difficult for them to trust the caregiver.
{¶ 28} The caregiver also mentioned that with legal custody, she would not receive any financial assistance with daycare, and with a single income, she needs some help.
CASA/GAL
{¶ 29} Beverly Peacock testified she is the CASA assigned to represent the children. She was assigned on March 1, 2020, and has visited with the children monthly, both at mother's home and the caregiver's house. Peacock conducted an investigation and prepared a report, dated October 6, 2022, in which she recommended it was in the children's best interests that permanent custody be awarded to the agency.
{¶ 30} Peacock testified the children love mother but have expressed concern about going back home with mother because there was a lot of chaos. The children have thrived with the caregiver and deserve permanency. Peacock recalled mother had a situation in Hancock County where the children were removed and mother got the children back, but now, mother is in the same situation again, where the children were removed.
{¶ 31} Peacock testified that mother was not allowing Peacock to come to the home to observe visits with the children, so in January 2022, a magistrate ordered mother to cooperate. In February 2022, Peacock made several attempts to meet with mother, but mother was always busy. Quimbaya told mother she needed to make herself available to Peacock, which mother did in March 2022. Peacock then had three visits with mother and the children, and each time Peacock requested urine screens from mother, and all three were positive for alcohol and THC.
{¶ 32} Peacock said the visits at mother's house were very chaotic, with the children running around, although sometimes the children were in their rooms watching tv. Peacock reported that the children told her that before this case, there were guys in and out of mother's house all of the time. The children also told Peacock that the man who shot the gun was "mommy's friend."
{¶ 33} Peacock noted that appellant last visited with Ay.R. and Al.R. at Christmas time in 2021, and has not had contact with them in over 90 days. Ay.R. told Peacock he wants to live with mother or appellant, and Al.R. told Peacock she wants to live with appellant, as she is scared of mother because mother whoops her.
Juvenile Court's Decision
{¶ 34} On November 4, 2022, the court issued its judgment entry granting permanent custody of the children to the agency. The court noted that although mother was properly served, she failed to appear at the trial, and appellant is incarcerated and the prison was unable to make him available for trial.
{¶ 35} The court found, by clear and convincing evidence that the children cannot be placed with the parents within a reasonable time and should not be placed with the parents, under R.C. 2151.414(B)(1)(a). The court also found, by clear and convincing evidence, that under R.C. 2151.414(D)(1), it is in the best interests of the children to grant permanent custody to LCCS, and it would be contrary to the children's best interests to be reunified with the parents.
{¶ 36} The court detailed the testimony and evidence offered at trial, upon which it relied in reaching its findings of fact and conclusions. The court noted the case plan services offered to appellant, and observed that he was referred to domestic violence batterer's services, but was arrested before he could begin and is in prison for a conviction of abduction with a release date of May 2025; he has not visited with his children since his incarceration in April 2021.
{¶ 37} The court noted mother's history with child protective services dating back to 2015, with the children previously being removed from her care in another county. The court observed that in this case, mother successfully completed her case plan services, so she was granted unsupervised visits with the children during which mother completed three urine screens which were all positive for alcohol and THC. Mother's response was that she was an adult and can drink when she wants. When mother was advised she had to complete another dual diagnostic assessment and her visits with the children would be modified to supervised visits, she refused services and stated that she no longer wanted to visit with the children, and informed Quimbaya not to contact her again.
{¶ 38} The court set forth the children's case plan services which included counseling for Ay.R. and Al.R., and that Al.R. completed counseling, while Ay.R. continues with counseling. The court observed the children are thriving in their current placement with the caregiver, she is meeting all of their needs, and she is interested in adopting the children should they become available and she would allow them to maintain contact with the parents if the parents are appropriate. Quimbaya believed that an award of permanent custody to LCCS is in the children's best interests.
{¶ 39} The court noted the caregiver testified Ay.R. last had contact with appellant by letter in December 2021, Al.R. has not had any contact with him for over a year, and mother last visited the children on March 27, 2022, and has not contacted them since.
{¶ 40} In addition, the court observed the GAL testified that the children are doing well with the caregiver, and all of their needs are being met. The GAL believes an award of permanent custody to LCCS to be in the children's best interests.
{¶ 41} As to mother, the court found, under R.C. 2151.414(E)(1), that notwithstanding reasonable case planning and diligent efforts by LCCS to assist mother to remedy the problems that initially caused the children to be placed outside of the home, mother has failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside of the home. After testing positive for substances, mother refused to submit to a substance abuse assessment so services could be offered to remedy any substance abuse concerns.
{¶ 42} The court further found, under R.C. 2151.414(E)(4), that mother has demonstrated a lack of commitment toward the children by failing to regularly support or visit with them when able to do so, or by other actions showing an unwillingness to provide an adequate permanent home for the children. Mother has not visited nor asked about the children since March 27, 2022.
{¶ 43} As to appellant, the court found, under R.C. 2151.414(E)(1), that after the children were placed outside of the home, and notwithstanding reasonable case planning and diligent efforts by LCCS to assist appellant to remedy the problems that initially caused the children to be placed outside of the home, appellant has failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside of the home. Appellant failed to engage in case plan services and will be incarcerated until May 2025.
{¶ 44} The court found, under R.C. 2151.414(E)(10) and R.C. 2151.011(C), that mother and appellant have abandoned their children. Mother has not visited the children since March 2022, and appellant has not contacted nor visited his children since December 2021. Therefore, the parents have failed to visit with their children for more than 90 days, and the court found, under R.C. 2151.414(D)(1), that it is in the best interests of the children to award permanent custody to LCCS for adoptive placement and planning.
{¶ 45} The court further found that mother has failed to re-engage in case plan services as requested and essentially walked away from the children, and appellant has also made no progress in case plan services since the case opened. The court found, under R.C. 2151.414(D)(1)(d), that the children deserve a legally safe, secure and permanent environment which cannot be achieved without an award of permanent custody to LCCS, and under R.C. 2151.414(D)(1)(e), the factor listed in R.C. 2151.414(E)(10) applies to all of the parents as they have abandoned the children.
{¶ 46} The court further found that LCCS made reasonable efforts by offering case plan services to the parents that were designed to remedy the issues that lead to the removal of the children and to reunify the family, and LCCS made reasonable efforts by identifying an alternative permanent plan of permanent custody and adoption for the children.
The Appeal
Standard - Permanent Custody
{¶ 47} A juvenile court's decision 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 and 03AP-1231, 2004-Ohio-3312, ¶ 28. "The underlying rationale of giving deference to the findings of the juvenile court rests with the knowledge that the juvenile judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Furthermore, "[e]very reasonable presumption must be made in favor of the judgment and the findings of facts [of the juvenile court]." Karches v. Cincinnati, 38 Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Therefore, a judgment supported by some competent, credible evidence going to all essential elements of the case is not against the manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978), syllabus.
{¶ 48} The juvenile court may grant permanent custody of a child to a children services agency if the court finds, by clear and convincing evidence, two statutory prongs: (1) the existence of at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the child's best interest is served by granting permanent custody to the agency. In re M.B., 10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6; R.C. 2151.353(A)(4).
{¶ 49} As to the first prong, R.C. 2151.414(B)(1)(a) provides that "the child cannot be placed with either parent within a reasonable period of time or should not be placed with either parent." In making a finding under R.C. 2151.414(B)(1)(a), the juvenile court must find, by clear and convincing evidence, that one of the factors under R.C. 2151.414(E) exists. Here, the two factors under that section pertinent to appellant state:
(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.
* * *
(10) The parent has abandoned the child.R.C. 2151.414(E).
{¶ 50} To satisfy the second prong, the agency must establish, by clear and convincing evidence, that permanent custody of the children to the agency is in the best interest of the children based on an analysis under R.C. 2151.414(D). Here, the factors under that section which are pertinent to appellant provide:
(1)(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.
* * *
(E)(10) The parent has abandoned the child.R.C. 2151.414(D)(1)(d) and (e); R.C. 2151.414(E)(10).
{¶ 51} R.C. 2151.011(C) states "a child shall be presumed abandoned when the parents of the child have failed to visit or maintain contact with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days." This provision creates a presumption of abandonment, which may be rebutted. In re S.B., 183 Ohio App.3d 300, 2009-Ohio-3619, 916 N.E.2d 1110, ¶ 33 (10th Dist.).
{¶ 52} Clear and convincing evidence requires proof which "produce[s] in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In order to determine whether a juvenile court based its judgment on clear and convincing evidence, the reviewing court examines the record to decide whether the trier of fact had sufficient evidence before it to satisfy the appropriate degree of proof. State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
Assignment of Error
Appellant's Arguments
{¶ 53} Appellant argues that the trial court failed to use the least restrictive placement for Ay.R. and Al.R. when it granted permanent custody to LCCS, as the court had the discretion to place the children into the legal custody of the caregiver, and it was unreasonable for the court to order permanent custody. Appellant submits the only reason the caregiver wanted permanent custody of the children was because she needed the adoption subsidy. He contends the caregiver admitted that the children want to see him, the CASA testified it was in Ay.R.'s best interest to keep in contact with appellant, and the children expressed to the CASA and their attorney that they want a relationship with him and they want to live with him when he is released from prison.
{¶ 54} Appellant asserts permanent custody of the children was granted to make the caregiver's life "just a bit easier," as LCCS admitted that legal custody would be least restrictive but "only sought permanent custody to provide financial assistance" to the caregiver. Appellant argues that "[e]ither the [caregiver] can afford to care for the children or not, and clearly she cannot afford to care for them without [appellant] losing his legal rights to the children. Surely, this Court must be bothered by the fact that children are being used as commodities, and that is absolutely not in their best interest." He insists "[t]o remove children permanently from their relationship with their father based solely to provide more financial assistance to the [caregiver] is unconscionable and unreasonable."
{¶ 55} Appellant cites to, inter alia, R.C. 2151.353(A) and In re R.V., 6th Dist. Lucas No. L-10-1278, 2011-Ohio-1837. Appellant recognizes that this court has routinely found that a parent cannot raise a denial of legal custody to a third party because a parent lacks standing, but his case is distinguishable for two reasons. The caregiver testified she only wanted permanent custody because she needed the adoption subsidy to keep caring for the children, and the caregiver is already a party to the case. Appellant maintains he has standing to argue the grant of permanent custody was an abuse of discretion.
The Agency's Arguments
{¶ 56} The agency counters the trial court had more than enough competent, credible evidence to find that it was in the best interests of the children to award permanent custody to the agency. The agency argues the elements of R.C. 2151.414(E) were proven by clear and convincing evidence, and the trial court's ruling, that it was in the children's best interests that the parental rights be terminated, was supported by competent, credible evidence. The agency maintains that since the trial court found permanent custody was in the children's best interests, then legal custody is not. The agency notes "it is acknowledged that a parent does have standing to raise arguments regarding the possibility of a relative assuming legal custody of a child to the extent those arguments challenge the decision to terminate the parent's rights."
{¶ 57} The agency contends that appellant is incarcerated until May 2025, making it impossible for him to provide an adequate permanent home for the children within the statutory sunset date. The agency asserts that appellant had not contacted either of his children for over 10 months despite having the contact information. The agency also argues that appellant did not complete the case plan services designed to reunify the children with him.
{¶ 58} The agency insists that it is clear by the evidence presented that the children are well cared for in the caregiver's home, and the caregiver is committed to providing permanency for the children. In addition, the agency contends the record is clear the caregiver's reason for wanting to adopt the children is that she believes it is in their best interests, for their mental health and emotional wellbeing.
Law and Analysis
Standing
{¶ 59} In In re R.V., 6th Dist. Lucas No. L-10-1278, 2011-Ohio-1837, at ¶ 15, we set forth:
[A] parent has standing to challenge the trial court's failure to grant a motion for legal custody filed by a non-parent because the court's denial of that motion led to a grant of permanent custody to the children services agency, which impacted the residual rights of the parent. * * * The parent has standing to challenge only how the court's decision impacted the parent's rights, however, not the rights of the third party. (Citations omitted.)
{¶ 60} On the authority of In re R.V., we reject the reasons offered by appellant in support of his contention that he has standing to raise the denial of legal custody to the caregiver. We find appellant's standing is limited to whether the juvenile court improperly terminated his parental rights.
First Prong of the Permanent Custody Test
{¶ 61} Upon review of the juvenile court's decision, the court found R.C. 2151.414(B)(1)(a) applied to appellant, that the children cannot be placed with either parent within a reasonable period of time or should not be placed with either parent, and inter alia, R.C. 2151.414(E)(10) pertained to appellant, as he abandoned his children.
{¶ 62} The record shows the CASA/GAL, the caregiver and the caseworker all testified at the permanent custody hearing that appellant had not visited his children or had contact with his children since 2021. We find this evidence supports a presumptive finding that appellant legally abandoned his children by failing to have contact for over 90 days. Appellant has not contested that finding.
{¶ 63} Based on our review of the record, as summarized above, we conclude there is clear and convincing evidence in the record to support the juvenile court's decision that appellant's children could not and should not be placed with him. We also conclude there is clear and convincing evidence in the record to support the juvenile court's decision that appellant abandoned his children. We therefore find the first prong of the permanent custody test is satisfied.
Second Prong of the Permanent Custody Test
{¶ 64} In its decision, the juvenile court concluded that permanent custody to LCCS was in the children's best interests, and found R.C. 2151.414(D)(1)(d), (e) and R.C. 2151.414(E)(10) applied to appellant, that the children need a legally secure permanent placement which cannot be achieved without a grant of permanent custody to LCCS, and appellant has abandoned his children.
{¶ 65} While appellant did not present any arguments regarding the best interest factors, other than to assert that the children are being used as commodities which is not in their best interests, we find the record shows the juvenile court relied on the following evidence in reaching its finding, that by clear and convincing evidence, it is in the children's best interests to grant permanent custody to LCCS: appellant has failed continuously and repeatedly to substantially remedy the conditions causing the children to be placed outside of the home, as appellant failed to engage in case plan services and has made no progress in case plan services since the case opened; appellant will be incarcerated until May 2025; and appellant abandoned his children, by having no contact or visits with his children since December 2021, which is more than 90 days.
{¶ 66} Upon review, the record reflects that the children have been with the caregiver since November 2020, and they are thriving. Despite appellant's claim that the caregiver only sought permanent custody to provide financial assistance, the record shows the caregiver believes it is in the children's best interests, for their mental health and emotional wellbeing, that she adopts them, as they deserve to know that they are going to be in one place. In addition, the record reveals the CASA/GAL recommended that it was in the children's best interests for permanent custody to be awarded to LCCS.
{¶ 67} Based on our review of the record, as summarized above, we conclude the juvenile court had before it clear and convincing evidence that granting permanent custody of the children to LCCS is in the children's best interests. We further conclude the juvenile court's decision to grant permanent custody of the children to LCCS is supported by competent, credible evidence and is not against the manifest weight of the evidence. In addition, we do not find that the juvenile court failed to utilize the least restrictive placement for the children when it granted permanent custody to LCCS. We therefore find the second prong of the permanent custody test is satisfied.
{¶ 68} Based on the foregoing, appellant's assignment of error is found not-well taken.
{¶ 69} On consideration whereof, the judgment of the Lucas County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court 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., Christine E. Mayle, J., Myron C. Duhart, P.J. CONCUR.