In re M.G.

[Cite as In re M.G., 2022-Ohio-3180.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
FAYETTE COUNTY
IN RE: : CASE NO. CA2022-05-006
M.G., et al. :
OPINION
: 9/12/2022
:
:
:
APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. AND20200316; AND20190645; AND20190646; AND20190647
Melissa Upthegrove, for appellant.
Jess C. Weade, Fayette County Prosecuting Attorney, and Rachel S. Martin, Assistant
Prosecuting Attorney, for appellee.
M. POWELL, P.J.
{¶ 1} Appellant, the mother of the four minor children in this case, appeals a
decision of the Fayette County Court of Common Pleas, Juvenile Division, granting
permanent custody of the children to Fayette County Children Services ("FCCS"). For the
following reasons, we affirm.
Fayette CA2022-05-006
I. Factual and Procedural Background
{¶ 2} The three oldest children came to the attention of FCCS in 2019, when the
oldest child was taken to the emergency room of the local hospital with a serious eye injury,
and the hospital reported the injury. The agency learned that the children and their parents
lived with the paternal grandfather in his home. A caseworker paid the family a visit and
found the condition of the house "deplorable." There were trash and cockroaches
throughout; the bathroom was "disgusting," having used toilet paper on the floor and feces
on the wall; and Mother, Father, and the children were "basically secluded" to one bedroom.
The parents first told the caseworker that the eye injury occurred when the child ran into a
cabinet. But they later said that the grandfather had pushed the child into the cabinet. The
three children were removed from the home, in October 2019, and placed in the temporary
custody of FCCS.
{¶ 3} The following year, in July 2020, Mother gave birth to the youngest child. The
hospital contacted FCCS with concerns about the parents' ability to care for the baby.
Hospital staff reported that the parents were struggling with basic parenting skills—feeding
the baby, changing her clothes, and changing her diaper without assistance. FCCS learned
that the parents were still living with the paternal grandfather and that the conditions of the
home had not improved. The agency obtained temporary custody of the baby, and the child
was removed from the hospital.
{¶ 4} All four children were adjudicated dependent and were placed together in the
same foster home. A case plan for Father and Mother was prepared with the goal of
reunification. Among other things, the case plan required them to become financially stable
and to obtain appropriate housing. Almost two years passed, and while the parents
completed many items in the case plan, they had failed to demonstrate any kind of financial
stability and had failed to obtain appropriate housing. The parents were still living in the
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paternal grandfather's home with him.
{¶ 5} On October 19, 2021, FCCS filed motions for permanent custody of the
children. A hearing on the motions was held in April 2022 at which the caseworker and the
children's foster mother testified. Father also testified. Shortly before the hearing, the
children's guardian ad litem ("GAL") filed an amended report with the trial court
recommending that permanent custody be granted to FCCS.
{¶ 6} On April 25, 2022, the trial court issued a decision granting FCCS permanent
custody of the four children. The court found that, in August 2021, Mother obtained a job
at Speedway, where she still worked. Father had been working but was not currently
employed. He was injured in 2019 and went on workers' compensation. He started working
again in October 2021, but the facility where he worked closed and he has not worked since.
The trial court found that neither Father nor Mother had a driver's license and that they
relied mostly on the paternal grandfather to drive them to all their appointments. The
caseworker had referred them to Fayette County Transportation, but the parents had been
reluctant to use the service because of concerns about reliability. Based on the foster
mother's testimony, the court noted that the children collectively have more than 20 medical
appointments each month and that FCCS was concerned that the parents must rely on
others for transportation.
{¶ 7} But the trial court's primary concern was housing. The court found that,
despite having had almost two years, the parents had failed to find appropriate housing.
They were still living in the same home from which the children were removed and the home
was still in a state unfit for the children. Thus the trial court concluded that permanent
custody to FCCS was in the children's best interest.
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{¶ 8} Mother appealed the decision.1
II. Analysis
{¶ 9} The sole assignment of error alleges:
{¶ 10} THE TRIAL COURT ERRED IN FINDING CLEAR AND CONVINCING
EVIDENCE THAT IT WAS IN THE BEST INTEREST OF THE CHILDREN TO GRANT
PERMANENT CUSTODY TO FCCS.
{¶ 11} Parents have a "fundamental right" "to make decisions concerning the care,
custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054(2000). 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 K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.
Kramer, 455 U.S. 745, 747-748, 102 S.Ct. 1388 (1982) ("Before a State may sever
completely and irrevocably the rights of parents in their natural child, due process requires
that the State support its allegations by at least clear and convincing evidence").
{¶ 12} "An 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. 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." (Citations omitted.) In re K.F., 12th Dist. Clermont No. CA2020-10-061, 2021-
Ohio-1183, ¶ 54. In other words, 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." In re T.P., 12th Dist. Butler No. CA2015-08-
1 Father filed a separate appeal in Fayette No. CA2022-05-007.
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164, 2016-Ohio-72, ¶ 19.
{¶ 13} In determining whether a juvenile court's permanent-custody decision 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 S.M., 12th Dist. Warren Nos. CA2018-08-088 to CA2018-08-091 and CA2018-08-095
to CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20. We presume that the finder of fact weighed the evidence correctly—
a presumption that "we are especially mindful of in custody cases." In re C.Y., 12th Dist.
Butler Nos. CA2014-11-231 and CA2014-11-236 to CA2014-11-238, 2015-Ohio-1343, ¶
25.
{¶ 14} R.C. 2151.414(B)(1) establishes the requirements for granting permanent
custody of a child to a children services agency. Under this provision, a court may terminate
parental rights and grant permanent custody if it finds that doing so is in the best interest of
the child and one of five other requirements described in subdivisions (a) to (e) is met.
Subdivision (d) requires a finding that the child has been in the temporary custody of the
children services agency for at least 12 months of a consecutive 22-month period.
{¶ 15} In determining whether permanent custody is in a child's best interest, R.C.
2151.414(D)(1) requires a court to consider the five factors:
(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;
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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, or the child has been in the temporary custody of one or
more public children services agencies or private child placing
agencies for twelve or more months of a consecutive twenty-
two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
(d) The child's need for a legally secure permanent placement
and whether that type of placement can be achieved without a
grant of permanent custody to the agency; [and]
(d) Whether any of the factors listed in R.C. 2151.414(E)(7) to
(11) apply in relation to the parents and child.
"The juvenile court may also consider any other factors it deems relevant to the child's best
interest." In re A.J., 12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 24.
{¶ 16} In this case, the trial court's primary concern was housing. The parents had
failed to obtain appropriate housing and continued to live with the paternal grandfather. The
caseworker testified that she had visited the paternal grandfather's home a couple of weeks
before the hearing and found that the conditions had not improved at all. The caseworker
also testified about the many ways in which she tried to help the parents find housing. She
noted that none of her other clients had had problems obtaining housing during the same
two-and-a-half-year period. The caseworker further indicated that FCCS would not allow
the children to be returned to the same home in which the grandfather was living due to the
parent's allegations that he had abused the oldest child by shoving him and causing the eye
injury. Also concerning to the court was the fact that the parents had to rely mostly on the
paternal grandfather for transportation. The children's foster mother had testified about the
numerous medical appointments that the children have.
{¶ 17} Turning to the statutory best-interest factors, the trial court found that the
children have continued to interact with both parents on a regular basis during family visits.
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The court said that the children are bonded with Mother but said nothing about Father. The
court also found that the children are bonded to their foster parents. The children did not
express their wishes, said the court, due to their ages. The court found the children have
been in the temporary custody of FCCS for at least 12 months of a consecutive 22-month
period. Importantly, the juvenile court found that the children needed a legally secure
permanent placement and that such a placement could not be achieved without a grant of
permanent custody to FCCS. The court found that FCCS had made reasonable efforts
toward reunification with the parents, or in the alternative, placement with a family member,
but found that either would be contrary to the children's best interest. The court found that
the parents have made no progress in securing a home suitable for the children. All four
children are living together in the same foster home, where they have all been since their
removal, the court found, and there were no concerns with the foster home. The court also
noted that the foster mother had expressed interest in adopting all four children. Finally,
the court found that none of the factors in R.C. 2151.414(E)(7) to (11) applies. After
weighing the evidence, the trial court concluded that a grant of permanent custody to FCCS
was in the children's best interest.
{¶ 18} Mother argues that the evidence does not sufficiently support the juvenile
court's permanent-custody decision. She points out that the evidence shows that she had
found a job, was earning an income, and was paying her bills. She was bonded with the
children, and she did not miss any of her scheduled visits. The evidence further shows that
she interacted with her children. The only part of her case plan that she failed to satisfy
was appropriate housing. Mother claims that she made efforts to find appropriate housing
but simply could not.
{¶ 19} Mother has not convinced us that the trial court weighed the evidence
incorrectly. "A parent is afforded a reasonable, not an indefinite, period to remedy the
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conditions causing the child's removal." In re W.J.T., 12th Dist. Butler No. CA2019-03-047,
2019-Ohio-3051, ¶ 41. After two years, and despite assistance from the agency, Mother
and Father have been unable or unwilling to obtain their own separate housing. The case
worker testified that none of her other clients had failed to find housing during that time.
"[T]he key concern is not whether the parent has successfully completed the case plan, but
whether the parent has substantially remedied the concerns that caused the child's removal
from the parent's custody." In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-
2318, ¶ 24. After two years, the parents have also failed to remedy the conditions that
caused the removal of their children. As little as two weeks before the hearing, the house
was still in the filthy and squalid condition that it had been in when the children were
removed two years before. The children could not return there.
III. Conclusion
{¶ 20} We conclude that the juvenile court did not err by determining that it was in
the children's best interest to grant permanent custody to FCCS. There is sufficient credible
evidence to support the court's findings and its permanent-custody decision, and the court's
decision is not contrary to the manifest weight of the evidence. Mother's sole assignment
of error is overruled. The juvenile court's judgment is affirmed.
HENDRICKSON and PIPER, JJ., concur.
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