In re K.C.

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[Cite as In re K.C., 2021-Ohio-184.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY In The Matter Of: : : : : : : : : : K.C., Adjudicated Dependent Child. Case No. 20CA8 DECISION AND JUDGMENT ENTRY APPEARANCES: Ryan Shepler, Logan, Ohio, for Appellant. Timothy L. Warren, Assistant Athens County Prosecuting Attorney, Athens, Ohio, for Appellee. Smith, P.J. {¶1} M.C. (mother) appeals the trial court’s judgment that granted Athens County Children Services (“the agency”) permanent custody of her four-year-old biological child, K.C. The “mother” raises one assignment of error, which contends that the trial court erred in finding, by clear and convincing evidence, that granting permanent custody is in the child’s best interest. {¶2} On April 18, 2018, the agency filed a complaint that alleged the child is a neglected and dependent child. The trial court later adjudicated the child dependent1 and entered an order of protective supervision. In late 2018, the trial court granted the 1 Although the parties and the trial court indicate that the court adjudicated the child dependent in June or July 2018, the record transmitted on appeal does not appear to contain an entry to this effect. None of the Athens App. No. 20CA8 2 agency’s motion to modify the order of protective supervision to an order of temporary custody. {¶3} On December 11, 2019, the agency filed a motion to modify the disposition to permanent custody. At the permanent custody hearing, the mother testified that the agency caseworker advised the mother that in order to have the child returned to the mother’s care, the mother would need to (1) find safe, stable housing, (2) engage in substance abuse and mental health counseling, and (3) re-engage with the Athens County Board of Developmental Disabilities. The mother further agreed that the caseworker gave the mother phone numbers for My Sister’s Place, the Timothy House, Integrated Services, and the Athens County Board of Developmental Disabilities. The mother admitted that despite the information that the caseworker shared with her, the mother had not completed a drug and alcohol assessment, and she only recently set up an appointment with a mental health counselor. {¶4} The mother indicated that she had been engaged in some services earlier in the case, but the services were terminated when the mother stopped attending required meetings. The mother stated that at one point she had a parent mentor, Karen Armstrong, but Armstrong ended the relationship when the mother stopped attending sessions. The mother agreed that since the child entered the agency’s temporary custody, the mother has not really made any progress on her case plan. {¶5} Traci Winchell, the guardian ad litem, stated that she met with the mother’s service providers, attended hearings, and met with the child and the foster parents. Winchell testified that the child and the foster family appeared bonded and that the child parties dispute the trial court’s dependency adjudication. Therefore, we do not believe that the absence of this document from the record affects our ability to consider the mother’s appeal. Athens App. No. 20CA8 3 seemed to have positive interactions with the foster family. She stated that the child and the mother also shared positive interactions and that the mother is a loving and caring parent. Winchell explained that she believes that placing the child in the agency’s permanent custody would be in the child’s best interest. {¶6} Caseworker Stephanie McDaniel testified that she has been the caseworker since April 2019. McDaniel explained that the case plan required the mother to (1) work with a parent mentor, (2) attend doctor appointments, (3) follow through with service providers, (4) find independent housing, and (5) address substance abuse and mental health concerns. McDaniel stated that the mother “made zero progress” from the time that McDaniel became the caseworker through the date in December 2019 when the agency filed its permanent custody motion. {¶7} McDaniel advised the court that she does not believe that the child can achieve a legally secure permanent placement without placing the child in the agency’s permanent custody. McDaniel explained that the mother has made “very little case plan progress.” McDaniel stated that she has given the mother information on housing and substance abuse treatment, provided three referrals to Integrated Services, and engaged in case management services. McDaniel indicated that she even gave the mother copies of the case plans and highlighted the items that the mother needed to complete. McDaniel related that despite her efforts, the mother did not complete the case plan requirements. {¶8} On July 27, 2020, the trial court granted the agency permanent custody of the child. The court found that the child has been in the agency’s temporary custody for twelve or more months of a consecutive twenty-two-month period and that placing the child in the agency’s permanent custody is in the child’s best interest. Athens App. No. 20CA8 4 {¶9} The court considered the child’s interactions and interrelationships and found that the mother and the child “have always demonstrated a loving and bonded relationship.” The court also observed that the child “is bonded to her half-sister” and has bonded with the foster family. {¶10} The court reviewed the child’s custodial history and noted that before the child’s removal from the home in 2018, the child had lived with the mother. The court further determined that the child needs a legally secure permanent placement. {¶11} The court also noted that it previously found that the agency had made reasonable efforts to reunify the family. The court thus determined that it need not enter another reasonable-efforts finding. The court pointed out, however, that the agency’s efforts did not eliminate the need for the child’s continued removal because the mother “was unable to effect the necessary changes in her life to make it safe for her to be a responsible parent.” {¶12} The court thus granted the agency permanent custody of the child. This appeal followed. ANALYSIS {¶13} In her sole assignment of error, the mother challenges the trial court’s finding that granting the agency permanent custody of the child is in the child’s best interest. The mother alleges that the agency “made minimal efforts, at best, to try to connect her with appropriate services.” She further asserts that the guardian ad litem failed to appropriately investigate the mother’s current living arrangements and that the guardian ad litem was unaware of the mother’s recent attempts to comply with the case plan. The mother additionally contends that the strong bond that she shares with the child Athens App. No. 20CA8 5 shows that placing the child in the agency’s permanent custody is not in the child’s best interest. STANDARD OF REVIEW {¶14} A reviewing court generally will not disturb a trial court’s permanent custody decision unless the decision is against the manifest weight of the evidence. In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 53 (4th Dist.). When an appellate court reviews whether a trial court’s permanent custody decision is against the manifest weight of the evidence, the court “ ‘ “ ‘weighs the evidence and all reasonable 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 trial ordered.’ ” ’ ” Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶15} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court’s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43. In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). “Thus, if the children services agency presented competent and credible evidence upon which the trier of fact reasonably could Athens App. No. 20CA8 6 have formed a firm belief that permanent custody is warranted, then the court’s decision is not against the manifest weight of the evidence.” R.M. at ¶ 55. {¶16} Once the reviewing court finishes its examination, the court may reverse the judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “ ‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.’ ” Thompkins at 387, 678 N.E.2d 541, quoting Martin at 175, 485 N.E.2d 717. A reviewing court should find a trial court’s permanent custody decision against the manifest weight of the evidence only in the “ ‘exceptional case in which the evidence weighs heavily against the [decision].’ ” Id., quoting Martin at 175, 485 N.E.2d 717. PERMANENT CUSTODY PRINCIPLES {¶17} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶¶ 8-9. A parent’s rights, however, are not absolute. D.A. at ¶ 11. Rather, “ ‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the polestar or controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.1974). Thus, the State may terminate parental rights when a child’s best interest demands such termination. D.A. at ¶ 11. Athens App. No. 20CA8 7 PERMANENT CUSTODY FRAMEWORK {¶18} R.C. 2151.414(B)(1) specifies that a trial court may grant a children services agency permanent custody of a child if the court finds, by clear and convincing evidence, that (1) the child’s best interest would be served by the award of permanent custody, and (2) any of the following conditions applies: (a) 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-twomonth 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. (b) The child is abandoned. (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. (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 twentytwo-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. (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated an abused, neglected, or dependent child on three separate occasions by any court in this state or another state. {¶19} The statute further states: For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home. Athens App. No. 20CA8 8 R.C. 2151.414(B)(1)(e). {¶20} In the case at bar, the trial court found that the child has been in the agency’s temporary custody for more than twelve months of a consecutive twenty-twomonth period, and thus, that R.C. 2151.414(B)(1)(d) applies. The mother does not challenge the court’s finding. Therefore, we do not address the issue. {¶21} R.C. 2151.414(D)(1) requires a trial court to consider all relevant, as well as specific, factors to determine whether a child’s best interest will be served by granting a children services agency permanent custody. The specific factors include: (1) the child’s interaction and interrelationship with the child’s parents, siblings, relatives, foster parents and out-of-home providers, and any other person who may significantly affect the child; (2) the child’s wishes, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the child’s maturity; (3) the child’s custodial history; (4) 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; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply. {¶22} Determining whether granting permanent custody to a children services agency will promote a child’s best interest involves a delicate balancing of “all relevant [best interest] factors,” as well as the “five enumerated statutory factors.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit Nos. 24097 and 24099, 2008-Ohio-3773, 2008 WL 2906526, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and 07AP-591, 2008-Ohio-297, 2008 WL 224356, ¶ 19. However, none of the best interest factors requires a court to give it “greater weight or Athens App. No. 20CA8 9 heightened significance.” C.F. at ¶ 57. Instead, the trial court considers the totality of the circumstances when making its best interest determination. In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-39, 2017-Ohio-142, 2017 WL 168864, ¶ 24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, 2014 WL 5690571, ¶ 46. In general, “[a] child’s best interest is served by placing the child in a permanent situation that fosters growth, stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-Ohio-916, 2016 WL 915012, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991). {¶23} In the case at bar, we do not believe that the trial court’s best-interest determination is against the manifest weight of the evidence. The agency presented substantial clear and convincing evidence that placing the child in its permanent custody would serve the child’s best interest. Children’s Interactions and Interrelationships {¶24} The court found that the child has bonded with the foster family. The trial court also found that the mother has a loving relationship with the child. We note, however, that the “existence of a positive relationship,” by itself, is not determinative of the child’s best interest. In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 65 (8th Dist.); In re S.S.-1, 4th Dist. Athens No. 17CA44, 2018-Ohio-1349, 2018 WL 1720650, ¶ 76. Children’s Wishes {¶25} The trial court did not consider the child’s direct wishes, but the court noted that the child is only four years old. The guardian ad litem recommended that the court grant the agency permanent custody of the child. Athens App. No. 20CA8 10 Custodial History {¶26} The child has been in the agency’s temporary custody since late 2018, and at the time the agency filed its permanent custody motion, the child had been in the agency’s temporary custody for twelve or more months of a consecutive twenty-twomonth period. Legally Secure Permanent Placement {¶27} “Although the Ohio Revised Code does not define the term ‘legally secure permanent placement,’ this court and others have generally interpreted the phrase to mean a safe, stable, consistent environment where a child’s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL 925423, *9 (Aug. 9, 2001) (implying that “legally secure permanent placement” means a “stable, safe, and nurturing environment”); see also In re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-4682, ¶ 28 (observing that legally secure permanent placement requires more than stable home and income but also requires environment that will provide for child’s needs); In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (stating that mother unable to provide legally secure permanent placement when she lacked physical and emotional stability and that father unable to do so when he lacked grasp of parenting concepts); In re J.W., 171 Ohio App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.) (Sadler, J., dissenting) (stating that a legally secure permanent placement means “a placement that is stable and consistent”); Black's Law Dictionary 1354 (6th Ed. 1990) (defining “secure” to mean, in part, “not exposed to danger; safe; so strong, stable or firm as to insure safety”); Id. at 1139 (defining “permanent” to mean, in part, “[c]ontinuing or enduring in Athens App. No. 20CA8 11 the same state, status, place, or the like without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient”). Thus, “[a] legally secure permanent placement is more than a house with four walls. Rather, it generally encompasses a stable environment where a child will live in safety with one or more dependable adults who will provide for the child’s needs.” M.B. at ¶ 56. {¶28} In the case at bar, the child needs a legally secure permanent placement, and she cannot achieve this type of placement without the trial court granting the agency permanent custody. The mother has not obtained stable, independent housing. The mother currently rents a room in a three-bedroom house. The mother has struggled with substance abuse issues throughout the case and consistently tested positive for controlled substances. As of the date of the permanent custody hearing, the mother had not completed any of the case plan requirements. By the time the court held the permanent custody hearing, the mother had started to engage in some of the services required. However, the caseworker stated that the mother still had not completed the case plan requirements. The evidence presented at the permanent custody hearing shows that the mother does not have a legally secure permanent placement for the child, even though the mother had well over twelve months to work on the case plan goals so that she would have a legally secure permanent placement for the child. {¶29} Given the mother’s failure to complete the case plan requirements, the trial court could have reasonably determined that returning the children to her custody would not be in the child’s best interest. This court has recognized that a parent’s past history is one of the best predictors of future behavior. In re West, 4th Dist. Athens No. 05CA4, Athens App. No. 20CA8 12 2005-Ohio-2977, 2005 WL 1400029, ¶ 28, citing In re A.S., 12th Dist. Butler Nos. CA2004-07-182 and CA2004-08-185, 2004-Ohio-6323, 2004 WL 2698408, ¶ 37 (“Past history is often the best predictor of future conduct. While surely people can change, the facts do not indicate that [the biological parents] have the motivation or ability to follow through and do what is necessary to regain custody of their child.”); In re Vaughn, 4th Dist. Adams No. 00CA692, 2000 WL 33226177, *7 (Dec. 6, 2000) (“To further the interests of the children, the court must consider any evidence available to it, including a parent’s pattern of conduct. Some of the most reliable evidence for the court to consider is the past history of the children and the parents.”); see also In re Brown, 60 Ohio App.3d 136, 139, 573 N.E.2d 1217 (1st Dist.1989) (stating that the mother’s “past parenting history and her ability to comply with prior reunification plans regarding her other children were relevant considerations in the juvenile court’s dispositional determination” to award a children services agency permanent custody). {¶30} Furthermore, we have repeatedly recognized that trial courts need not experiment with a child’s welfare: “* * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child’s present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child’s welfare to see if he will suffer great detriment or harm.” In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, 2014 WL 7477958, ¶ 48, quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838 (5th Dist.1987). Athens App. No. 20CA8 13 REASONABLE EFFORTS {¶31} The mother also asserts that the trial court’s best-interest determination is against the manifest weight of the evidence because the agency did not undertake enough efforts to help her achieve the case plan goals. We do not agree with the mother. {¶32} R.C. 2151.419(A)(1) enumerates the types of hearings at which a trial court must determine whether an agency has made “reasonable efforts to prevent the removal of the child from the child’s home, to eliminate the continued removal of the child from the child’s home, or to make it possible for the child to return safely home.” The agency has the burden of proving that it has made those reasonable efforts. {¶33} R.C. 2151.419(A)(1) does not apply “to a hearing on a motion for permanent custody brought pursuant to R.C. 2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41 (noting that the types of hearings enumerated in the statute “involve adjudicatory, emergency, detention and temporary-disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state”). Instead, at various stages of an abuse, neglect, or dependency proceeding, the agency may be required to prove that it has made reasonable efforts at family reunification. “If the agency has not established that reasonable efforts have been made prior to the hearing on a motion for permanent custody, then it must demonstrate such efforts at that time.” Id. at ¶ 43. {¶34} Here, R.C 2151.413 and R.C. 2151.414 govern the agency’s permanent custody motion. Therefore, R.C. 2151.419(A)(1) did not require the agency to show reasonable reunification efforts at the hearing unless it had not been established Athens App. No. 20CA8 14 previously. At several stages of the proceedings, the agency established—and the court found—that the agency made reasonable efforts. At no point did the mother object to the trial court’s reasonable-efforts determinations. {¶35} Because the record reflects that the trial court made reasonableeffort findings at various points throughout the case, the agency did not need to prove at the permanent custody hearing that it made reasonable reunification efforts. Nor did the trial court need to make such a determination. Id. at ¶ 42, 45. {¶36} Based upon all of the foregoing reasons, we do not agree with the mother that the trial court’s best-interest determination is against the manifest weight of the evidence. CONCLUSION {¶37} Accordingly, having found no merit to the mother’s sole assignment of error, we affirm the judgment of the trial court. JUDGMENT AFFIRMED. Athens App. No. 20CA8 15 JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED. Costs shall be assessed to the Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court - Juvenile Division to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. and Hess, J. concur in Judgment and Opinion. For the Court, __________________________________ Jason P. Smith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.

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