In re K.P.

[Cite as In re K.P., 2022-Ohio-1155.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
PREBLE COUNTY
IN RE: : CASE NO. CA2021-11-017
K.P. : OPINION
4/5/2022
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:
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APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 20193047
Martin P. Votel, Preble County Prosecuting Attorney, and Sean Brinkman, Assistant
Prosecuting Attorney, for appellee.
Alana Van Gundy, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant ("Father") appeals a decision of the Preble County Court of
Common Pleas, Juvenile Division, granting permanent custody of his son, K.P., to the
Preble County Job and Family Services, Children's Services Division (the "Agency"). K.P.'s
mother ("Mother") is not a party to this appeal. Father and Mother were never married to
one another.
{¶ 2} The Agency became involved with Mother on June 28, 2019, the day K.P.
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was born, when it received a referral that Mother reported she had used illegal substances
two months prior to giving birth, on the day of the birth, and within a few days of the birth,
and that K.P. was exhibiting withdrawal symptoms. Four days after K.P. was born, his cord
blood tested positive for fentanyl, buprenorphine, morphine, naloxone, amphetamines,
benzodiazepines, methamphetamines, and cocaine. At the time of K.P.'s birth, Father was
incarcerated on drug charges and was set to be released in December 2021. On July 3,
2019, the Agency filed a complaint alleging that K.P. was a dependent and abused child.
The juvenile court granted emergency temporary custody of the child to the Agency; the
child was placed in foster care. On August 22, 2019, the juvenile court adjudicated K.P. a
dependent and abused child.
{¶ 3} Father was added to the family case plan while he was incarcerated. The
Agency requested that Father engage in substance abuse "services that assist him with
becoming or remaining free of all illegal substance use. [Father] will sign releases for this
agency to obtain information on his progress. [Father] will not use any illegal substances
or legal substances in an illegal manner." Father was also required to "obtain a consistent
income that will contribute to providing for [K.P.'s] basic needs." Father was released on
June 24, 2021.
{¶ 4} Temporary custody of K.P. was extended on July 24, 2020, and again on
February 17, 2021. On May 28, 2021, the Agency moved for permanent custody of K.P.
Both Father and Mother objected to the Agency's request for permanent custody. The
CASA filed a report, recommending that permanent custody be granted to the Agency. In
support of her recommendation, the CASA noted that temporary custody of K.P. could no
longer be extended, that Father had no relationship with K.P. because he had been
incarcerated during the child's entire life, and that although Father was set to be released
in June 2021, he could not provide basic needs for the child.
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{¶ 5} A hearing on the Agency's motion for permanent custody was held in
September 2021. Mother was represented by counsel; Father was not. The juvenile court
heard testimony from several witnesses, including the foster father, a caseworker, and
Mother. Father was given the opportunity to testify on his own behalf but declined to do so.
{¶ 6} During its case-in-chief, the Agency presented evidence that K.P. had been
living with his current foster family since February 2020, that he is very bonded with the
foster family and that his needs are met, and that the foster family would like to adopt him.
The caseworker testified that Father had no relationship with K.P. while incarcerated, that
following his release, Father regularly and consistently attended visits with K.P., and that
the visits always went well. The caseworker further testified that Father was not currently
employed, that he had provided a friend's address in Indiana for housing, and that while he
reported he had completed the case plan services while he was incarcerated, the Agency
had not received documentation showing what he had completed. The caseworker testified
that Father's lack of stable housing and steady income and the failure to verify his sobriety
prevented reunification of K.P. with Father.
{¶ 7} On October 21, 2021, the juvenile court granted permanent custody of K.P.
to the Agency. The juvenile court found that it was in K.P.'s best interest to grant the Agency
permanent custody, that K.P. had been in the temporary custody of the Agency for at least
12 months of a consecutive 22-month period, and that despite reasonable efforts by the
Agency to prevent the need for placement of K.P. outside the home, K.P. could not and
should not be placed with Father or Mother within a reasonable amount of time.
{¶ 8} Father now appeals the juvenile court's decision, raising one assignment of
error:
{¶ 9} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO
PREBLE COUNTY CHILDREN'S SERVICES BECAUSE THAT AGENCY FAILED TO
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PROVE BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS
IN THE BEST INTEREST OF THE MINOR CHILD.
{¶ 10} Father argues that the juvenile court erred by granting permanent custody of
K.P. to the Agency.
{¶ 11} Before a natural parent's constitutionally protected liberty interest in the care
and custody of his or her child may be terminated, the state is required to prove by clear
and convincing evidence that the statutory standards for permanent custody have been
met. In re R.K., 12th Dist. Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-
3074, ¶ 14, citing Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Because
the state is required to prove that the statutory standards for permanent custody have been
met by clear and convincing evidence, "[a]n appellate court's review of a juvenile court's
decision granting permanent custody is generally limited to considering whether sufficient
credible evidence exists to support the juvenile court's determination." In re R.K. at ¶ 13.
This court will therefore reverse a juvenile court's decision to grant permanent custody only
if there is a sufficient conflict in the evidence presented. Id. However, even if the juvenile
court's decision is supported by sufficient evidence, an appellate court may nevertheless
conclude that the judgment is against the manifest weight of the evidence. Id.{¶ 12} In determining whether a juvenile court's decision to grant a motion for
permanent custody is against the manifest weight of the evidence, an appellate 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.'" In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-
Ohio-72, ¶ 19, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.
"The presumption in weighing the evidence is in favor of the finder of fact, which we are
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especially mindful of in custody cases." In re R.K. at ¶ 15.
{¶ 13} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental
rights and award permanent custody of a child to a children services agency if the court
makes findings pursuant to a two-part test. In re R.K., 2021-Ohio-3074 at ¶ 16. First, the
juvenile court must find that the grant of permanent custody to the agency is in the best
interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Id. Second, pursuant
to R.C. 2151.414(B)(1)(a) to (e), the juvenile court must find that any of the following apply:
(1) the child is abandoned; (2) the child is orphaned; (3) the child has been in the temporary
custody of the agency for at least 12 months of a consecutive 22-month period; (4) where
the preceding three factors do not apply, the child cannot be placed with either parent within
a reasonable time or should not be placed with either parent; or (5) the child or another child
in the custody of the parent from whose custody the child has been removed, has been
adjudicated an abused, neglected, or dependent child on three separate occasions. Id.Only one of these findings must be met to satisfy the second prong of the two-part
permanent custody test. Id.{¶ 14} In this case, the juvenile court found that K.P. had been in the temporary
custody of the Agency for more than 12 months of a consecutive 22-month period at the
time the Agency filed its motion for permanent custody. This finding is not disputed by
Father and is supported by the record, as K.P. has been in the temporary custody of the
Agency since July 2019.1 Father instead disputes the juvenile court's finding that granting
permanent custody of K.P. to the Agency was in the child's best interests.
1. As noted above, the juvenile court also found that K.P. could not be placed with Father within a reasonable
time because Father failed continuously and repeatedly to substantially remedy the conditions that caused
the child to be removed, which Father disputes. We need not address this argument, however, because K.P.
has been in the custody of the Agency for more than 12 months of a consecutive 22-month period, thereby
establishing the second prong of the permanent custody analysis. In re J.M., 12th Dist. Butler Nos. CA2021-
06-072, CA2021-06-073, CA2021-07-083, and CA2021-07-084, 2021-Ohio-3961, ¶ 51, fn. 5.
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{¶ 15} When considering the best interest of a child in a permanent custody hearing,
the juvenile court is required under R.C. 2151.414(D)(1) to consider all relevant factors.
This includes, but is not limited to, (1) the interaction and interrelationship of the child with
the child's parents, siblings, relatives, foster caregivers and out-of-town providers, and any
other person who may significantly affect the child; (2) the wishes of the child, as expressed
directly by the child or through the child's guardian ad litem; (3) the custodial history of the
child; (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 of the factors listed in R.C. 2151.414(E)(7) to (11) apply in relation to the
parents and child. In re R.K., 2021-Ohio-3074 at ¶ 18.
{¶ 16} With respect to K.P.'s relevant interactions and relationships with those who
may significantly impact his young life, the juvenile court found that K.P. was doing well in
foster care and that all his needs were met in his foster home. Furthermore, K.P. is very
bonded with his foster family who has expressed an interest in adopting him.
{¶ 17} The juvenile court noted at the outset that the child's wishes "as expressed by
the child or through the Guardian Ad Litem" is a best interest factor which the juvenile court
is to consider under R.C. 2151.414(D)(1)(b). The juvenile court did not discuss this factor
with reference to R.C. 2151.414(D)(1)(b), likely because of the lack of focus and evidence
upon the issue during the permanent custody hearing and K.P.'s young age. 2 See In re
M.G., 12th Dist. Warren No. CA2020-10-070, 2021-Ohio-1000; In re S.M., 12th Dist. Warren
Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095 thru CA2018-08-097,
2019-Ohio-198. However, in addition to acknowledging that the child's wishes are a best
2. "[W]e emphasize that the best practice is for the juvenile court to specifically address each factor" under
R.C. 2151.414(D)(1). In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 32. "Discussion of the statutory best-
interest factors in R.C. 2151.414(D)(1) facilitate[s] appellate review of permanent-custody judgments." Id.-6-
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interest factor to be considered, the juvenile court's findings of fact noted that K.P. was two
years old and using "Toddler language" and that the CASA's report recommended that
permanent custody be granted to the Agency. In re M.G.3 The foregoing indicates a
consideration of this factor by the juvenile court.
{¶ 18} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed K.P.'s
custodial history and found that he had been in his current foster home "since February of
2020, twenty months of his twenty-eight months." K.P. has been in the temporary custody
of the Agency for 12 or more months of a consecutive 22-month period.
{¶ 19} In considering R.C. 2151.414(D)(1)(d), the juvenile court found that K.P.
needs stability and a legally secure permanent placement and that his need for such
placement could not be obtained without a grant of permanent custody to the Agency. The
juvenile court noted that while there was a chance Father and Mother will be successful in
remedying their issues, K.P. "is stable, happy and provided for now and deserves to have
that continue." The court further found that no other relatives could be considered as
custodians for K.P.
{¶ 20} The juvenile court made no findings regarding whether any of the factors listed
in R.C. 2151.414(E)(7) thru (11) apply in relation to the parents and child. However, none
of the factors apply here and no party has argued otherwise. In re A.M., Slip Opinion No.
2020-Ohio-5102, ¶ 36.
{¶ 21} Based upon its consideration of the relevant factors in R.C. 2151.414(D), the
juvenile court found by clear and convincing evidence that it was in K.P.'s best interest to
grant permanent custody to the Agency.
3. On September 8, 2021, the day after the permanent custody hearing, the juvenile court filed an entry
ordering that the child remain in the temporary custody of the Agency. The court’s entry states, "the Court
noted that CASA filed a written report recommending permanent custody of the Agency and confirmed that
recommendation remained the same after hearing the testimony.
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{¶ 22} Father argues that the evidence does not support the grant of permanent
custody to the Agency. Specifically, Father asserts that considering little evidence was
presented against him and he was never questioned on the record regarding his housing,
employment, and sobriety, the evidence does not meet the standard of clear and convincing
evidence necessary to permanently terminate his parental rights.
{¶ 23} Father was incarcerated on drug charges when K.P. was born in July 2019
and had no contact or relationship with K.P. until Father was released in June 2021 when
K.P. was two years old, three months prior to the permanent custody hearing. Although
Father regularly visited with K.P. after his release and the visits went well, the limited three-
month period was insufficient to establish a significant relationship with K.P. Although
Father ostensibly engaged in substance abuse treatment during his incarceration, the
Agency never received documentation or verification of what case plan services were
completed. Likewise, there was no evidence or verification of Father's sobriety following
his release. The three-month period between his release and the permanent custody
hearing was insufficient to establish a stable period of sobriety. Furthermore, Father was
not employed, did not have his own housing, and was living with a friend in Lafayette,
Indiana.
{¶ 24} Father takes issue with the fact that "no testimony from Father was heard,"
that he was not asked about his sobriety, housing, education, or employment on the record,
and that the juvenile court "did not ask him on record about his progress towards his case
plan." However, Father declined to testify on his own behalf and contradict the evidence
submitted by the Agency that he lacked stable housing and employment and that he failed
to verify the services he had completed while incarcerated and his sobriety. By declining
to testify, Father forewent the opportunity to present evidence in his favor.
{¶ 25} Throughout these proceedings, the Agency explored possible placements for
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K.P., but was unable to locate a suitable alternative arrangement. In a separate case
involving Mother, the juvenile court granted permanent custody of K.P. to the Agency,
finding that K.P. could not be placed with Mother within a reasonable time because Mother
failed continuously and repeatedly to substantially remedy the conditions that caused the
child to be removed. Earlier in the proceedings, Mother suggested her then roommate but
the two subsequently had a falling out and were no longer speaking. Mother also suggested
a family friend; however, the family friend has never met K.P. and never moved for legal
custody of K.P.
{¶ 26} As this court has previously recognized, "[a] child's best interests are served
by the child being placed in a permanent situation that fosters growth, stability, and
security." In re M.G., 2021-Ohio-1000 at ¶ 44. The juvenile court's decision to grant
permanent custody to the Agency does that. K.P. was removed from Mother's care on July
3, 2019, when he was four days old, and has been in foster care ever since. At the time of
the September 2021 permanent custody hearing, Mother had been unable to remedy the
conditions that caused K.P.'s removal. Moreover, she was incarcerated on drug charges
and was not set to be released until January 2022. K.P. has been in the Agency's custody
for over two years and no longer qualifies for temporary custody under R.C. 22151.415(D);
K.P. does not meet the requirements for a planned permanent living arrangement under
R.C. 2151.353(A)(5); and prior to the permanent custody hearing, no relative or other
interested person had filed a motion for legal custody of K.P. By contrast, K.P. has been
living in his foster home since February 2020, is bonded with his foster parents, and is doing
very well. K.P.'s foster parents have indicated their desire to adopt K.P. It is the best
interest of the child, not a parent's preferred outcome, that is controlling. In re K.M., 12th
Dist. Butler No. CA2019-01-015, 2019-Ohio-1833, ¶ 67.
{¶ 27} In light of the foregoing, we find that the juvenile court's decision was
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supported by clear and convincing evidence and was not against the manifest weight of the
evidence. Therefore, the juvenile court did not err by granting permanent custody of K.P.
to the Agency.
{¶ 28} Father's assignment of error is overruled.
{¶ 29} Judgment affirmed.
S. POWELL and HENDRICKSON, JJ., concur.
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