In re L.L. , 2020 Ohio 1565 ( 2020 )

[Cite as In re L.L., 2020-Ohio-1565.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
IN RE:
CASE NO. 5-19-33
L.L.,
ALLEGED ABUSED, NEGLECTED
AND DEPENDENT CHILD.
OPINION
[BRANDY JOHNSON - APPELLANT]
Appeal from Hancock County Common Pleas Court
Juvenile Division
Trial Court No. 20183001
Judgment Affirmed
Date of Decision: April 20, 2020
APPEARANCES:
Alison Boggs for Appellant
Wesley R. True for Appellee
Case No. 5-19-33
PRESTON, J.
{¶1} Appellant, Brandy Johnson (“Johnson”), appeals the August 26, 2019
judgment of the Hancock County Court of Common Pleas, Juvenile Division
granting permanent custody of Johnson’s daughter, L.L., to the Hancock County
Department of Job and Family Services Children’s Protective Services Unit
(“CPSU”). For the reasons that follow, we affirm.
{¶2} Johnson and Zachary Lanning (“Lanning”) are the biological parents of
L.L. When L.L. was born on January 27, 2018, she tested positive for opiates and
cocaine. (Doc. No. 1). On January 30, 2018, CPSU filed a complaint alleging that
L.L. was an abused, neglected, and dependent child. (Id.). That same day, CPSU
filed a motion requesting that the trial court grant emergency temporary custody of
L.L. to CPSU. (Id.). Following a hearing on February 1, 2018, the trial court
granted CPSU’s motion, and L.L. was placed in the emergency temporary custody
of CPSU. (Doc. No. 11). On February 13, 2018, the trial court appointed a guardian
ad litem (“GAL”) for L.L.1 (Doc. No. 13).
{¶3} At a hearing on March 15, 2018, L.L. was adjudicated abused,
neglected, and dependent. (Doc. No. 17). Following a dispositional hearing on
April 12, 2018, the trial court determined that L.L. would remain in the temporary
custody of CPSU. (Doc. No. 20).
1
The trial court later permitted this GAL to withdraw from the case. (Doc. No. 53). On November 14, 2018,
the trial court appointed a new GAL for L.L. (Id.).
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{¶4} On May 8, 2018, CPSU filed a motion for contempt. (Doc. No. 22). In
its motion, CPSU asked the trial court to hold Johnson in contempt because Johnson
failed to appear for nine random drug screens. (Id.).
{¶5} Beginning in May 2018, Johnson was repeatedly hospitalized for a
number of health issues, including endocarditis. (Aug. 16, 2019 Tr. at 116). In July
2018, Johnson was required to undergo open-heart surgery. (Id. at 56, 131).
Following her surgery, Johnson was admitted into a nursing home, where she
remained until September 2018. (Id. at 39, 133-134). Johnson attributed her health
problems to her previous use of intravenous drugs. (Id. at 104, 117).
{¶6} Due in part to Johnson’s hospitalizations, a hearing on CPSU’s motion
for contempt was not held until October 4, 2018, at which time the trial court found
Johnson to be in contempt of court. (Doc. No. 50). On November 20, 2018,
Johnson, having failed to purge the contempt, was committed to the Hancock
County Justice Center for 30 days. (Doc. No. 58). In addition, in late November
2018, Johnson began serving a 180-day jail sentence in the Hancock County Justice
Center for a theft charge from 2017. (Aug. 16, 2019 Tr. at 43-44, 80, 134). Johnson
was released from jail in late May 2019. (Id. at 117).
{¶7} On February 1, 2019, CPSU filed a motion for permanent custody of
L.L. (Doc. No. 64). The GAL filed her report on June 21, 2019. (Doc. No. 84). A
permanent custody hearing was held on August 16, 2019. (Aug. 16, 2019 Tr. at 1);
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(Doc. No. 89). On August 26, 2019, the trial court granted CPSU’s motion for
permanent custody and awarded permanent custody of L.L. to CPSU. (Doc. No.
89).
{¶8} On September 18, 2019, Johnson filed a notice of appeal.2 (Doc. No.
95). She raises three assignments of error for our review. Because her assignments
of error concern related issues, we will address them together.
Assignment of Error No. I
The trial court’s decision granting permanent custody was
against the manifest weight of the evidence and amounted to an
abuse of discretion.
Assignment of Error No. II
The agency failed to use reasonable efforts to reunify Miss
Johnson with her daughter.
Assignment of Error No. III
The agency did not prove by clear and convincing evidence that
Miss Johnson abandoned her child, as contemplated by the
statute.
{¶9} In her assignments of error, Johnson argues that the trial court erred by
awarding permanent custody of L.L. to CPSU. Specifically, in her first assignment
of error, Johnson argues that clear and convincing evidence does not support either
the trial court’s determination that one or more of the R.C. 2151.414(B)(1)(a)-(e)
2
Lanning is not a party to this appeal. Prior to the permanent custody hearing, Lanning consented to the
grant of permanent custody to CPSU. (See Doc. No. 76).
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factors apply or its determination that granting permanent custody of L.L. to CPSU
is in L.L.’s best interest. (Appellant’s Brief at 8-16). In her second assignment of
error, Johnson argues that the trial court erred by concluding that CPSU used
reasonable efforts to reunify her with L.L. (Id. at 16-19). In particular, Johnson
argues that the record does not support that CPSU “had reasonable case planning
and used any effort, let alone diligent effort, to help [her] with the completion of the
case plan.” (Id. at 17). See R.C. 2151.414(E)(1). Finally, in her third assignment
of error, Johnson argues that the trial court erred by concluding that L.L. is an
abandoned child. (Appellant’s Brief at 19-24). She contends that she rebutted any
presumption of abandonment by showing that the “time frames relied upon by the
court to justify finding she abandoned [L.L.] were the times she was hospitalized
for major open-heart surgery and while she was in jail.” (Id. at 20).
{¶10} The right to raise one’s child is a basic and essential right. In re
Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,
92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and
management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102
S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not
absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These
rights may be terminated under appropriate circumstances and when the trial court
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has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-
52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.
{¶11} “R.C. 2151.414 outlines the procedures that protect the interests of
parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.
Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re
B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for
permanent custody of a child, the trial court must comply with the statutory
requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,
2015-Ohio-2740, ¶ 13, citing In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-
03, 2009-Ohio-6027, ¶ 14. “R.C. 2151.414(B)(1) establishes a two-part test for
courts to apply when determining whether to grant a motion for permanent custody:
(1) the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-
(e) applies, and (2) the trial court must find that permanent custody is in the best
interest of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶
10, citing In re S.G., 9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10 and In
re Brown, 98 Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides,
in relevant part, that a trial court
may grant permanent custody of a child to a movant if the court
determines at the hearing held pursuant to [R.C. 2151.414(A)], by
clear and convincing evidence, that it is in the best interest of the child
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to grant permanent custody of the child to the agency that filed the
motion for permanent custody and that any of the following apply:
(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-two-month period, * * * 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.
R.C. 2151.414(B)(1)(a)-(b). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f
one or more of the factors enumerated in R.C. 2151.414(E) is found to be present
by clear and convincing evidence, the trial court shall find that the child cannot be
placed with the parents within a reasonable period of time or should not be placed
with the parents.’” In re A.M. at ¶ 13, quoting In re A.F., 3d Dist. Marion No. 9-11-
27, 2012-Ohio-1137, ¶ 54, citing In re Goodwin, 3d Dist. Shelby No. 17-08-12,
2008-Ohio-5399, ¶ 23.
{¶12} As relevant to the resolution of this case, R.C. 2151.414(E) provides:
In determining at a hearing held pursuant to [R.C. 2151.414(A)] * * *
whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the
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court shall consider all relevant evidence. If the court determines, by
clear and convincing evidence, at a hearing held pursuant to [R.C.
2151.414(A)] * * * 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.
R.C. 2151.414(E)(1).3
3
In this case, although the trial court also made findings under R.C. 2151.414(E)(2), (4), (10), and (11), the
trial court’s findings under those divisions are only minimally relevant to our determination of Johnson’s
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{¶13} “‘If the trial court determines that any provision enumerated in R.C.
2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which
requires the trial court to ‘determine, by clear and convincing evidence, whether
granting the agency permanent custody of the child is in the child’s best interest.’”
In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39, 2017-Ohio-142,
¶ 23, quoting In re A.F. at ¶ 55 and citing R.C. 2151.414(B)(1). “The best interest
determination is based on an analysis of R.C. 2151.414(D).” Id.{¶14} “Under R.C. 2151.414(D)(1), the trial court is required to consider all
relevant factors listed in that subdivision, as well as any other relevant factors.” Id.
at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-
Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:
(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;
assignments of error. (Doc. No. 89). Thus, for the sake of brevity, we will not reproduce those divisions
here.
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(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 * * *;
(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.
R.C. 2151.414(D)(1). “Under this test, the trial court considers the totality of the
circumstances when making its best interest determinations. No single factor is
given more weight than others.” In re N.R.S, 2018-Ohio-125, at ¶ 16, citing In re
Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶15} If the trial court makes these statutorily required determinations, a
reviewing court will not reverse a trial court’s decision unless it is not supported by
clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and
16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d
Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In
re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence
is that which is sufficient to produce in the mind of the trier of fact a firm belief or
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conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at
¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
{¶16} For ease of discussion, we will consider Johnson’s assignments of
error out of order, beginning with her third assignment of error. In her third
assignment of error, Johnson argues that clear and convincing evidence does not
support the trial court’s determination under R.C. 2151.414(B)(1)(b) that L.L. is
abandoned. “For the purposes of [R.C. Chapter 2151], 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.” R.C. 2151.011(C). Numerous
courts, including this one, have determined that R.C. 2151.011(C) creates a
presumption of abandonment, which may be rebutted by the parents. E.g., In re
L.M., 6th Dist. Lucas No. L-16-1212, 2017-Ohio-610, ¶ 28, citing In re S.B., 183
Ohio App.3d 300, 2009-Ohio-3619, ¶ 33 (10th Dist.); In re M.J., 2d Dist. Greene
Nos. 2014-CA-32 and 2014-CA-33, 2015-Ohio-127, ¶ 33; In re D.K., 3d Dist. Allen
No. 1-09-16, 2009-Ohio-5438, ¶ 25, citing In re Cravens, 3d Dist. Defiance No. 4-
03-48, 2004-Ohio-2356, ¶ 23.
{¶17} With respect to whether Johnson abandoned L.L., the trial court found:
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[Johnson] has, on two occasions, met the abandonment standard
outlined in R.C. §2151.011(C). [Johnson] failed to visit with [L.L.]
in April, May, June, July, and August 2018. Likewise she failed to
visit with [L.L.] in October, November, [and] December 2018 and [in]
January, February, March, April and May of 2019. Much argument
was made by [Johnson’s] counsel that she was unable to visit due to
medical issues and being in jail. Even if the Court were [to] accept
this argument, there were many months when she was not ill and not
in jail and still failed to visit the child. [Johnson] testified that her
illness was a result of drug use. When she was released from the
hospital, she did not immediately go to reinitiate visits, she instead
began again using drugs. Furthermore, her jail time was imposed as
a result of wrongdoing on her part. * * * When her sentence was
completed, she, again, did not reinitiate visits. She instead used
cocaine and eventually entered residential treatment after it was
suggested by her adult probation officer. The Court finds by clear and
convincing evidence that [L.L.] is abandoned * * *.
(Doc. No. 89).
{¶18} After reviewing the record, we conclude that clear and convincing
evidence supports the trial court’s determination that L.L. is abandoned. The record
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reflects that from February 2018, when L.L. was removed from Johnson’s custody,
until late May 2019, when Johnson was released from jail, Johnson had a total of
three visits with L.L.—in February, March, and September 2018. (Aug. 16, 2019
Tr. at 16-17, 58, 118-119, 132). Thus, the record supports the trial court’s finding
that Johnson failed to visit with L.L. between April 2018 and August 2018 and
between October 2018 and May 2019. Furthermore, while the record supports that
Johnson had inconsistent communications with CPSU caseworkers during her
hospitalizations and nursing home stay, it does not contain any evidence suggesting
that Johnson otherwise attempted to maintain contact with L.L. (See id. at 132).
Therefore, CPSU presented ample evidence demonstrating that Johnson twice went
more than 90 days without visiting or maintaining contact with L.L., thus raising
R.C. 2151.011(C)’s presumption of abandonment.
{¶19} Though Johnson appears to acknowledge that CPSU produced enough
evidence to raise the presumption of abandonment, she argues that she rebutted the
presumption of abandonment because evidence was presented establishing that the
gaps in visitation and contact were attributable to her poor health, hospitalizations,
and incarceration—none of which, according to Johnson, demonstrates that she
intended to abandon L.L. (Appellant’s Brief at 20-24). In addition, concerning the
gap in visitation Johnson imputes to her poor health and hospitalizations, she
contends that her “actions of reaching out to the agency when she was able * * *
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indicat[es] that her absence from L.L.’s life was not because she desired to sever
ties with her daughter.” (Id. at 22).
{¶20} Johnson’s arguments are without merit. Even assuming that Johnson’s
limited contacts with CPSU caseworkers during her hospitalizations and nursing
home stay are sufficient to rebut the presumption of abandonment created by her
failure to visit or maintain contact with L.L. from April 2018 through August 2018,
insufficient evidence was presented to rebut the presumption of abandonment raised
by Johnson’s failure to visit or maintain contact with L.L. from October 2018
through May 2019. First, the record reflects that Johnson’s failure to visit or contact
L.L. during this period was not caused entirely by her incarceration. During the
approximately two-month period between September 2018, when she was
discharged from the nursing home, and late November 2018, when she was
incarcerated, Johnson was completely free to visit or contact L.L. and healthy
enough to do so. Yet, rather than attempting visitation or contact with L.L., Johnson
testified that after visiting with L.L. in September 2018, she resumed some of her
old habits. (Aug. 16, 2019 Tr. at 132-134). Thus, Johnson’s incarceration cannot
account for her failure to visit or contact L.L. for the entirety of October 2018 and
most of November 2018. Furthermore, the record does not contain any evidence
that Johnson requested visitation with L.L. during her incarceration or that she
otherwise tried to maintain contact, and by itself, Johnson’s incarceration, the
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consequence of her own voluntary actions, does not excuse her failure to visit or
maintain contact with L.L. from October 2018 through May 2019. In re H.J., 11th
Dist. Ashtabula No. 2017-A-0068, 2018-Ohio-206, ¶ 22, citing In re Bailey
Children, 5th Dist. Stark No. 2004 CA 00386, 2005-Ohio-2981, ¶ 32; In re L.M.,
2017-Ohio-610, at ¶ 29-31; In re C.B., 4th Dist. Highland No. 16CA22, 2016-Ohio-
8293, ¶ 21-24; In re W.H., 5th Dist. Stark No. 2015CA00131, 2015-Ohio-4360, ¶
14, citing In re Wright, 5th Dist. Stark No. 2003CA00347, 2004-Ohio-1094, ¶ 15-
19; In re M.J., 2015-Ohio-127, at ¶ 36-42. Finally, although the record reflects that
Johnson restarted visitations with L.L. following her release from jail, the
presumption of abandonment “is not rebutted by evidence that the parents resumed
contact with the child after [the 90-day period] had expired.” In re C.B. at ¶ 23,
citing In re S.B., 183 Ohio App.3d 300, 2009-Ohio-3619, at ¶ 33-35, citing In re
Wright at ¶ 19-20; R.C. 2151.011(C). Accordingly, we conclude that clear and
convincing evidence supports the trial court’s determination pursuant to R.C.
2151.414(B)(1)(b) that L.L. is abandoned.
{¶21} Next, we consider Johnson’s second assignment of error, in which she
argues that CPSU failed to prove that it used reasonable efforts to reunify her with
L.L. At the outset, we note that while Johnson repeatedly uses the phrase
“reasonable efforts” throughout her second assignment of error, she continually
cites to R.C. 2151.414(E)(1), which does not use the phrase “reasonable efforts.”
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(See Appellant’s Brief at 16-19). Instead, when applicable, R.C. 2151.414(E)(1)
directs the trial court to consider whether a children services agency has offered
“reasonable case planning and diligent efforts * * * to assist the parents to remedy
the problems that initially caused the child to be placed outside the home * * *.” In
this case, the trial court used R.C. 2151.414(E)(1) as a basis for its determination
under R.C. 2151.414(B)(1)(a) that L.L. cannot be placed with Johnson within a
reasonable time or should not be placed with Johnson.4 (Doc. No. 89).
{¶22} However, in light of our resolution of Johnson’s third assignment of
error, we need not consider whether the trial court’s R.C. 2151.414(E)(1) findings
are supported by the record. “The factors contained within R.C. 2151.414(B)(1)(a)-
(e) are alternative findings, and only one must be met in order for the first prong of
the permanent custody test to be satisfied.” In re S.G., 2015-Ohio-2306, at ¶ 11,
citing In re M.M., 9th Dist. Lorain Nos. 10CA009744, 10CA009745, 10CA009746
and 10CA009747, 2010-Ohio-2278, ¶ 12. Here, the trial court made determinations
under both R.C. 2151.414(B)(1)(a) and 2151.414(B)(1)(b), and as discussed above,
the trial court’s determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned
is supported by clear and convincing evidence. Therefore, because the trial court’s
determination under R.C. 2151.414(B)(1)(b) supplies an independently sufficient
basis for granting CPSU’s motion for permanent custody, it is immaterial whether
4
As indicated above, the trial court also made findings under R.C. 2151.414(E)(2), (4), (10), and (11) to
support its determination under R.C. 2151.414(B)(1)(a). (Doc. No. 89).
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the trial court’s R.C. 2151.414(E)(1) findings, which support its R.C.
2151.414(B)(1)(a) determination, are supported by the record. See In re A.H., 9th
Dist. Lorain No. 13CA010454, 2014-Ohio-552, ¶ 9 (“Because the ‘12 of 22’ finding
was sufficient to support the first prong of the permanent custody test, any error in
the trial court’s alternate finding under R.C. 2151.414(E) would not constitute
reversible error because it did not result in any prejudice * * *.”), citing In re R.H.,
9th Dist. Lorain Nos. 11CA010002 and 11CA010003, 2011-Ohio-6749, ¶ 14; In re
Franklin, 3d Dist. Marion Nos. 9-06-12 and 9-06-13, 2006-Ohio-4841, ¶ 14-16.
{¶23} Moreover, to the extent that Johnson argues in her second assignment
of error that the grant of permanent custody was improper because CPSU failed to
demonstrate that it used “reasonable efforts” as required by other sections of R.C.
Chapter 2151, Johnson’s argument is misplaced. “[V]arious sections of the Revised
Code refer to the agency’s duty to make reasonable efforts to preserve or reunify
the family unit,” most notably R.C. 2151.419. In re C.F., 113 Ohio St.3d 73, 2007-
Ohio-1104, ¶ 29. Under R.C. 2151.419, when a trial court
removes a child from the child’s home or continues the removal of a
child from the child’s home, the court shall determine whether the
public children services agency * * * has made reasonable efforts to
prevent the removal of the child from the child’s home, to eliminate
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the continued removal of the child from the child’s home, or to make
it possible for the child to return safely home.
R.C. 2151.419(A)(1). R.C. 2151.419(A)(1) applies only at “‘adjudicatory,
emergency, detention, and temporary disposition hearings, and dispositional
hearings for abused, neglected, or dependent children * * *.’” In re N.R.S., 2018-
Ohio-125, at ¶ 25, quoting In re C.F. at ¶ 41. R.C. 2151.419(A)(1) “makes no
reference to a hearing on a motion for permanent custody. Therefore, ‘[b]y its plain
terms, the statute does not apply to motions 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. at ¶ 41, quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041,
2004-Ohio-5531, ¶ 30. However, this does not relieve children services agencies of
the duty to use reasonable efforts. Id. at ¶ 42. “If [an] 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.
{¶24} In this case, the trial court made reasonable-efforts findings on three
occasions prior to the permanent-custody hearing: at the hearing before CPSU was
granted emergency temporary custody of L.L., at the dispositional hearing, and in a
March 29, 2019 judgment entry specially finding that CPSU used reasonable efforts.
(Doc. Nos. 11, 20, 79). Johnson does not argue that the trial court’s previous
reasonable-efforts findings are unsupported by the record. (See generally
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Appellant’s Brief at 16-19). In sum, because the trial court previously made
reasonable-efforts findings, CPSU was not required to prove, nor was the trial court
required to find, that CPSU used reasonable efforts to reunify Johnson with L.L.
before the trial court could grant permanent custody of L.L. to CPSU. In re T.A.M.,
3d Dist. Crawford No. 3-18-13, 2018-Ohio-5058, ¶ 16.
{¶25} Finally, we address Johnson’s first assignment of error. In her first
assignment of error, Johnson argues that clear and convincing evidence does not
support the trial court’s determinations under R.C. 2151.414(B)(1)(a) and (b) or its
determination that granting permanent custody of L.L. to CPSU is in L.L.’s best
interest. (Appellant’s Brief at 8-16). Under Johnson’s third assignment of error, we
concluded that clear and convincing evidence supports the trial court’s
determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned. Furthermore,
as explained under Johnson’s second assignment of error, we do not need to
examine whether the trial court’s R.C. 2151.414(B)(1)(a) determination is
supported by the record. As a result, we consider only whether the trial court’s best-
interest findings are supported by clear and convincing evidence.
{¶26} With respect to L.L.’s best interest, the trial court found:
The Court has considered the interaction and interrelationship of
[L.L.] with [L.L.’s] parents, siblings, relatives and foster caregivers.
[L.L.] has been in the same foster home since she was released from
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the hospital after birth. [L.L.] has an established relationship with her
sister, C.W., due to the efforts of the foster mother in continuing visits
with the family that is raising C.W. [L.L.] has no established
relationship with [Johnson] * * * due to the lack of visits attended by
[Johnson] * * * over the past many months. Karmen Lauth
[(“Lauth”)] testified that [L.L.] is in need of a legally secure and
permanent placement which cannot be achieved unless permanent
custody is granted. Also, * * * the Court has considered that the
factors outlined in R.C. 2151.414(E)(10) and (11) exist in this case.
Accordingly, the Court finds by clear and convincing evidence that it
is in [L.L.’s] best interest to grant CPSU’s motion for permanent
custody.
(Doc. No. 89).
{¶27} After reviewing the record, we conclude that clear and convincing
evidence supports the trial court’s determination that it is in the best interest of L.L.
to grant permanent custody of L.L. to CPSU. First, it is clear that, pursuant to R.C.
2151.414(D)(1)(a), the trial court considered L.L.’s interaction and interrelationship
with her relatives and foster caregivers, and the record supports the trial court’s
findings under R.C. 2151.414(D)(1)(a). At the permanent custody hearing, Lauth
testified that L.L. has been placed with the same foster mother since she was initially
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removed from Johnson’s custody. (Aug. 16, 2019 Tr. at 64). Lauth stated that L.L.
“knows no other parent than her foster parent” and that L.L. is “quite bonded” with
her foster mother. (Id.). Moreover, the record supports that L.L.’s foster mother
has attempted to facilitate relationships with L.L.’s siblings and other family
members. Lauth testified that L.L.’s foster mother “has facilitated a family
relationship” with L.L.’s paternal relatives and that L.L. “sees one of her half
siblings when she visits with her paternal grandmother.” (Id. at 60). According to
Lauth, L.L. sees her paternal grandmother “fairly regularly.” (Id. at 61). Lauth also
stated that L.L.’s foster mother had “reached out to the other half sibling who was
recently adopted and would like to facilitate a sibling relationship with that child as
well.”5 (Id. at 61).
{¶28} In addition, the record establishes that Johnson does not have a strong
relationship with L.L. While the testimony showed that Johnson’s few visitations
with L.L. were “appropriate,” Lauth remarked that L.L. “does not know [Johnson]
as her mother.” (Id. at 18-19, 60, 182). She stated that Johnson made “[v]ery little”
progress in developing a relationship and forming a bond with L.L. (Id. at 53-54).
Therefore, the trial court’s findings about L.L.’s interaction and interrelationship
5
Lauth is likely referring to Johnson’s other child, C.W., in this statement. The record reflects that Lanning
is not the father of C.W. (See Doc. No. 1). As a result, it is likely that Lauth was not referring to C.W. when
she testified to L.L.’s established relationship with her paternal half-sibling. Although the trial court might
have mistakenly found that L.L. has an established relationship with C.W., the record still supports that L.L.
has a longstanding relationship with one of her siblings and that L.L.’s foster mother is making an effort to
establish a relationship with L.L.’s other sibling.
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with her relatives and foster caregivers are supported by the record, and this factor
clearly weighs in favor of granting permanent custody to CPSU. See In re C.J.P.,
10th Dist. Franklin No. 08AP-665, 2009-Ohio-1552, ¶ 10-13; In re Adams, 3d Dist.
Seneca No. 13-04-27, 2004-Ohio-7039, ¶ 19.
{¶29} Although the trial court did not make any specific findings under R.C.
2151.414(D)(1)(b), which obligates the trial court to consider the wishes of the
child, this does not call the trial court’s permanent-custody determination into
question. At the time of the permanent custody hearing, L.L. was not yet 19 months
old, and as confirmed by the GAL in her report, “[d]ue to [L.L.’s] age, she [was]
unable to voice her wishes.” (Doc. No. 84). In her report, the GAL recommended
that CPSU be awarded permanent custody of L.L. (Id.). From the trial court’s
judgment entry, it is clear both that the trial court was aware of the GAL’s report
and that the trial court considered the relevancy of R.C. 2151.414(D)(1)(b). (See
Doc. No. 89). Thus, under the circumstances of this case, we are satisfied that the
trial court adequately considered L.L.’s wishes as expressed through L.L.’s GAL,
and this factor supports the grant of permanent custody. See In re N.S.N., 4th Dist.
Washington Nos. 15CA6, 15CA7, 15CA8 and 15CA9, 2015-Ohio-2486, ¶ 38-40
(finding no error where trial court stated that it had considered “‘all relevant
evidence and factors,’” but omitted a specific discussion of R.C. 2151.414(D)(1)(b),
because it appeared that the trial court “considered R.C. 2151.414(D)(1)(b) but
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determined that the children were too young or immature to directly express their
wishes”); In re Haller, 3d Dist. Wyandot No. 16-08-16, 2009-Ohio-545, ¶ 17
(noting that a child’s wishes may be ascertained from the GAL’s report and
recommendation, especially where the child is “of tender years” or developmentally
delayed).
{¶30} Regarding R.C. 2151.414(D)(1)(c), which requires the trial court to
consider the child’s custodial history, we believe that the trial court properly
considered L.L.’s custodial history. In its conclusion, the trial court stated that its
best-interest determination was made in consideration of “the relevant factors
herein, including those as set forth in R.C. 2151.414(D)(1)(a)-(e) * * *.” (Doc. No.
89). This statement “indicates that the court was aware of and considered all of the
factors outlined in R.C. 2151.414(D)(1),” including L.L.’s custodial history. In re
N.S.N. at ¶ 38. In addition, the trial court’s finding that L.L. “has been in the same
foster home since she was released from the hospital after birth” appears to reflect
the trial court’s consideration of L.L.’s custodial history. (Doc. No. 89). The record
clearly and convincingly establishes that L.L. has been in the custody of CPSU for
nearly her entire life. L.L. was placed in the emergency temporary custody of CPSU
only days after her birth and has remained in the custody of CPSU ever since. When
CPSU filed its motion for permanent custody, L.L. had been in the temporary
custody of CPSU for nearly a year, and by the time of the permanent custody
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hearing, L.L. had been in CPSU’s custody for well over a year and a half. The fact
that L.L. has been in CPSU’s temporary custody for most of her short life supports
the grant of permanent custody to CPSU. See In re R.S., 4th Dist. Highland No.
13CA22, 2013-Ohio-5569, ¶ 44, 47 (holding that the trial court’s grant of permanent
custody was supported by the fact that the child “has spent his entire life in [the
agency’s] temporary custody,” “remained in the same foster home throughout that
time,” and “has not spent a single day in appellant’s custody”).
{¶31} Next, we consider whether the trial court’s findings under R.C.
2151.414(D)(1)(d), which requires the trial court to consider the child’s need for a
legally secure permanent placement and whether that type of placement can be
achieved without granting permanent custody, are supported by clear and
convincing evidence. At the permanent custody hearing, Lauth detailed the efforts
CPSU used to determine whether L.L. could be placed with a family friend or one
of her relatives. According to Lauth, CPSU conducted “three home studies to
explore relatives and kin.” (Aug. 16, 2019 Tr. at 62). However, all possible kinship
placements were ruled out after study and vetting. (Id. at 63-64). In addition, L.L.’s
paternal grandmother, with whom L.L. has a relationship, insisted that she did not
want custody of L.L. and would prefer to maintain a grandparent-grandchild
relationship. (Id. at 61).
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{¶32} Additionally, CPSU presented evidence that Johnson would not be
capable of providing L.L. with a legally secure permanent placement in the
foreseeable future, and Johnson did little to rebut CPSU’s evidence. First, CPSU
presented evidence that raised the possibility that Johnson’s problems with
substance abuse might still impair her ability to provide a stable home environment
for L.L. Johnson acknowledged that after being released from jail, she tested
positive for cocaine. (Id. at 112). She maintained that she only used cocaine
because she mistakenly believed that she needed to test positive for drugs in order
to be admitted into a particular rehabilitation center. (Id. at 139). However, CPSU
provided evidence demonstrating that Johnson did not need to be an active user of
drugs to be admitted into the facility, and Johnson conceded that she did not call the
facility in advance to inquire about their admissions criteria. (Id. at 162, 177). In
addition, Lauth testified that Johnson tested positive for THC just days before the
permanent custody hearing. (Id. at 52, 59). Although Johnson presented evidence
that two subsequent drug screens, one conducted a day after Johnson tested positive
and one conducted the day of the permanent custody hearing, came back negative
for THC, the positive drug screen nevertheless raises the concern that Johnson is
still using drugs.
{¶33} CPSU also presented evidence that Johnson would likely be unable to
provide L.L. with safe, stable housing. Lauth testified that, to her knowledge,
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Johnson has never been able to establish safe and stable housing as an adult. (Id. at
98). Both Lauth and Johnson testified that, as of the date of the permanent custody
hearing, Johnson was living with Johnson’s mother. (Id. at 53, 60, 109-110). Lauth
testified that CPSU believed that it was not appropriate for L.L. to live with
Johnson’s mother due to Johnson’s mother’s extensive history of drug abuse, though
Johnson testified that her mother had been clean for some time in 2019. (Id. at 53,
60, 110-111). Lauth further testified that there were safer housing options available
for Johnson at City Mission and that children under CPSU’s supervision had
previously lived with their parents at City Mission, but that Johnson had not taken
advantage of that opportunity. (Id. at 102-103). Johnson testified that she was
offered “sober living” after being discharged from the rehabilitation center, but that
she declined that offer. (Id. at 112-113). However, Johnson testified that she
intended to submit an application to a new independent sober living development,
but she acknowledged that the application had not yet been completed. (Id. at 149-
150). In addition, there was no evidence presented that Johnson would have been
capable of providing for L.L. financially within a reasonable time. Johnson testified
that, at the time of the permanent custody hearing, she was not employed, but she
stated that she desired to work. (Id. at 121-122). She stated that she was filling out
job applications and that she was considering applying for social security benefits
due to her heart condition. (Id. at 121-122).
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{¶34} Lastly, Lauth testified directly to L.L.’s need for a legally secure
permanent placement and offered her opinion regarding whether that type of
placement could be achieved without a grant of permanent custody to CPSU. Lauth
testified that L.L. had “been in the foster home during the entirety of the case and
she needs a permanent home in which to grow.” (Aug. 16, 2019 Tr. at 35). Lauth
testified that L.L. is in need of a legally secure permanent placement and that she
did not believe that that placement could be accomplished without permanent
custody being granted. (Id. at 62-63). Lauth further stated that she believed that
permanent custody was the “least restrictive” means of providing L.L. with stability,
that L.L. needed a “permanent, safe, [and] loving home in which to grow,” and that,
ultimately, adoption by the foster parent would “greatly benefit” L.L. (Id. at 65-
66). Thus, we conclude that the record supports the trial court’s determination under
R.C. 2151.414(D)(1)(d) that L.L. is in need of a legally secure permanent placement
and that this type of placement cannot be accomplished without granting permanent
custody of L.L. to CPSU.
{¶35} Finally, the record supports the trial court’s finding that two of the
factors in R.C. 2151.414(E)(7) to (11), R.C. 2151.414(E)(10) and (11), apply in
relation to Johnson and L.L. See R.C. 2151.414(D)(1)(e). We first consider R.C.
2151.414(E)(10). R.C. 2151.414(E)(10) asks the trial court to consider whether the
parent has abandoned the child. As explained under Johnson’s third assignment of
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error, there is clear and convincing evidence supporting the trial court’s
determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned. Accordingly,
the record also supports the trial court’s determination under R.C. 2151.414(E)(10)
that Johnson abandoned L.L.
{¶36} Moreover, there is clear and convincing evidence supporting the trial
court’s determination that R.C. 2151.414(E)(11) applies. Under R.C.
2151.414(E)(11), the trial court should consider whether “[t]he parent has had
parental rights involuntarily terminated with respect to a sibling of the child” and
whether “the parent has failed to provide clear and convincing evidence to prove
that, notwithstanding the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health, welfare, and safety of the
child.” At the permanent custody hearing, the trial court heard evidence that
Johnson’s parental rights to her other biological daughter, C.W., were terminated
less than two weeks before L.L.’s birth. (Aug. 16, 2019 Tr. at 35-36, 123-124);
(CPSU’s Ex. 3). Furthermore, as discussed in our examination of the trial court’s
findings under R.C. 2151.414(D)(1)(d), Johnson failed to prove that she could
provide a legally secure permanent placement for L.L. As a result, the record
supports the trial court’s determination concerning the applicability of R.C.
2151.414(E)(11).
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{¶37} In light of the foregoing, we conclude that clear and convincing
evidence supports the trial court’s determination under R.C. 2151.414(B)(1)(b) that
L.L. is abandoned. We also conclude that clear and convincing evidence supports
the trial court’s determination that granting permanent custody of L.L. to CPSU is
in L.L.’s best interest. Therefore, we conclude that the trial court did not err by
granting permanent custody of L.L. to CPSU.
{¶38} Johnson’s first, second, and third assignments of error are overruled.
{¶39} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
SHAW, P.J., concurs.
/jlr
WILLAMOWSKI, J., concurring separately.
{¶40} I am writing separately because although I concur with the conclusion
of the majority, I fully agree with the reasoning of the majority except as to part of
the third assignment of error upholding the finding that the child was abandoned.
The record is clear that for a portion of the time that Johnson did not have contact
with the child, she was in a hospital for treatment. Although the trial court found
that the hospitalization was due to Johnson’s voluntary drug usage, I would not
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count that time against Johnson. I do not want to set a precedent that time being
treated for an illness, regardless of what caused the illness, should be counted as
part of an abandonment calculation. Public policy would encourage one, especially
a parent, to seek whatever medical treatment they require without concern that it
would be used against them in a court proceeding to terminate parental rights. The
finding regarding seeking medical treatment was unnecessary to the trial court’s
final determination that the child was abandoned. The trial court also had a period
of time where there was no contact for over 90 days while Johnson was in jail. The
failure to maintain contact while in jail was a voluntary choice. Since that time
lasted more than 90 days, I agree with the majority that the evidence supports the
trial court’s finding that Johnson had abandoned her child by failing to maintain
contact for more than a period of 90 days. For this reason, I am concurring
separately in the judgment.
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