In re S.B.

[Cite as In re S.B., 2020-Ohio-6753.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
IN RE S.B. : Hon. Earle E. Wise, Jr., J.
:
: Case No. 2020 CA 00044
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of
Common Pleas, Juvenile Division, Case
No. F 20180675
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: December 17, 2020
APPEARANCES:
For Mother-Appellant: For LCJFS-Appellee:
JERMAINE L. COLQUITT WILLIAM C. HAYES
33 W. Main St. LICKING COUNTY PROSECUTOR
Suite 109
Newark, OH 43055 PAULA M. SAWYERS
20 S. Second St., 4th Floor
Newark, OH 43055
Licking County, Case No. 2020 CA 00044 2
Delaney, J.
{¶1} Mother-Appellant appeals the June 19, 2020 judgment entry of the Licking
County Court of Common Pleas, Juvenile Division, granting permanent custody of A.G.
to the Appellee, Licking County Job & Family Services and placing S.B. into a Planned
Permanent Living Arrangement with Appellee, Licking County Job & Family Services.
FACTS AND PROCEDURAL HISTORY
{¶2} Mother-Appellant is the biological mother of four children: S.B. (born on July
28, 2003); A.G. (born on July 25, 2006); and twins A.G. and J.G. (born on June 9, 2008).
The twins are not part of this appeal.
{¶3} The father of S.B. is H.B. The father of A.G. is R.N. The fathers had no
relationship with their children and were in prison. Mother was in a 15-year relationship
with J.G., the biological father of the twins. J.G. has a history of substance abuse and
criminal activity, including a felony domestic violence conviction in February 2019.
{¶4} Appellee Licking County Job & Family Services (“LCJFS”) became involved
with Mother and her children in September 2018 based on allegations of neglect. It was
alleged that Mother and J.G. were involved with drugs and had committed domestic
violence. The home was unkempt, infested with insects, and the children exhibited
symptoms of chronic head lice. Upon investigation by LCJFS, it filed a complaint alleging
dependency on October 3, 2018. The four children were removed from the home and
placed in the Emergency Shelter Care Custody of LCJFS on October 3, 2018. The twins
were placed in the temporary custody of their caregiver, subject to protective supervision.
S.B. and A.G. were placed in separate foster care homes.
Licking County, Case No. 2020 CA 00044 3
{¶5} An uncontested adjudicatory hearing was held on December 31, 2018. The
children were determined to be dependent and placed in the temporary custody of LCJFS.
{¶6} On August 29, 2019, LCJFS filed a Motion for Permanent Custody for A.G.
LCJFS also filed a Motion to Modify Disposition to a Planned Permanent Living
Arrangement (PPLA) for S.B. The motions were set for a hearing before the Magistrate
on January 14, 2020. The following facts were adduced at the hearing.
{¶7} Mother’s case was assigned to Caitlin Gladstone, ongoing social worker
with LCJFS. Gladstone filed Mother’s first case plan on October 30, 2018. Gladstone met
with Mother on November 27, 2018 to review the case plan. The case plan had four
objectives: substance abuse, housing, employment, and parenting. Mother’s drug of
choice was methamphetamines. The case plan required her to obtain substance abuse
treatment and drug screening. Mother was required to secure stable employment and
housing which would place her in a position to provide for the financial and housing needs
for her children. She finally had to complete parenting classes. Mother did not agree with
all the case plan objectives and felt she only needed to address housing and employment.
{¶8} The case plan provided for supervised visitation with S.B. and A.G. Mother
had her first visit on October 16, 2018. Her second visit was scheduled for October 30,
2018 and Mother did not appear. From October 2018 to July 2019, Mother was deep into
her drug addiction. She did not participate in visitation or any services provided by LCJFS.
She did not contact Gladstone or LCJFS.
{¶9} On February 1, 2019. Gladstone filed an amended case plan that removed
Mother from the cover page due to Mother’s lack of contact with LCJFS.
Licking County, Case No. 2020 CA 00044 4
{¶10} After the children were removed from the home, Mother was homeless. In
June 2019, Mother moved to a recovery house and engaged services with the Alcohol
and Drug Freedom Center of Knox County. She completed her diagnostic assessment
on June 4, 2019, where she was diagnosed with severe amphetamine type stimulant use
disorder, severe cannabis use disorder, and mild cocaine stimulant use disorder. Her
treatment plan was to attend intensive outpatient program and weekly individual
counseling. She started individual counseling on June 14, 2019 and IOP on June 17,
2019.
{¶11} Mother reached out to Gladstone in July 2019 and expressed an interest in
reunifying with her children. Mother and Gladstone met on August 12, 2019, where
Mother admitted she had a substance abuse disorder, but her last use was May 24, 2019
when she got high on her birthday.
{¶12} Mother moved from the recovery house and rented a room in a boarding
house. She lived there for a few months and in September 2019, Mother rented an
apartment with J.G. Gladstone would not conduct a home visit to the apartment because
J.G. threatened her. In January 2020, Mother received a voucher for subsidized housing
and independently leased a two-bedroom apartment. J.G. was in prison. Mother slept in
the common room of the apartment and stated the four children could share the two
bedrooms.
{¶13} Mother had no employment. She had time restrictions due to her substance
abuse treatment that limited her working hours. She had a job as a gas station attendant
for a few weeks and did some cleaning work. She consistently applied for employment
and was applying for Social Security disability due to her substance abuse disorder.
Licking County, Case No. 2020 CA 00044 5
{¶14} Mother completed IOP on November 25, 2019. She still attended individual
counseling sessions. She took drug screens on June 21, 2019, July 24, 2019, and
January 9, 2020, which were negative.
{¶15} When J.G. was arrested and incarcerated, Mother obtained independent
housing. Mother visited him once in jail. She stated she was no longer in a relationship
with him but remained in contact with him because of the children. She stated she was
unaware he was using drugs and understood his substance abuse was a risk to her own
recovery. Gladstone, at Mother’s request, gave J.G. a separate case plan for reunification
with the twins.
{¶16} Mother attended parenting classes and successfully completed the session.
During the pendency of the case, Mother had a poor relationship with S.B. and A.G.
Mother appeared for her first visit with the children on October 16, 2018, but she did not
appear for her second visit on October 30, 2018. On November 6, 2018, Gladstone met
with both children and they expressed they no longer wished to visit with Mother. Mother
reappeared in July 2019 and expressed a desire to reunify with her children. Mother said
she wanted to participate in joint counseling sessions with the children. The children’s
case manager stated the children had no desire to participate in joint counseling with
Mother and it would be detrimental to their individual trauma recovery.
{¶17} The children were placed in separate foster care in October 2018. Neither
child has special physical needs, but they require mental health treatment due to trauma.
S.B. is bonded with his foster parents and siblings. He struggles in school and needed to
repeat the ninth grade. He was in counseling and was being taught independent living
skills. S.B. expressed to the Guardian ad Litem that he did not wish to be reunified with
Licking County, Case No. 2020 CA 00044 6
Mother and preferred to remain in his foster home. He did not want to be adopted. A.G.
started her placement with the caregiver for the twins. A.G. was moved to a foster family
but was transitioned to Maternal Aunt after A.G. struck a foster sibling. A.G. was removed
from Maternal Aunt’s home due to behavioral issues. A.G. was placed in a foster to adopt
home, where she is doing better, and the family wants to adopt her. She struggles socially
and with anger management. A.G. does not want to go back to Mother’s care.
{¶18} The Guardian ad Litem recommended that A.G. be placed in the permanent
custody of LCJFS and a PPLA be granted for S.B.
{¶19} The Magistrate issued his Decision on April 16, 2020. He first found the
children were placed in the temporary custody of LCJFS on December 31, 2018,
approximately 13 months before the January 14, 2020 hearing. The Magistrate found
reasonable efforts were made to prevent the continued need for removal, but
notwithstanding the reasonable case planning and diligent efforts by LCJFS, the
conditions that caused the children to be placed outside the home had not sufficiently
improved to allow for reunification. The Magistrate found the biggest issue was Mother’s
relationship with the children:
Both children have expressed that they don’t want to see [Mother] or live in
her home. This is understandable, as both are angry with her for
disappearing from their lives in October of 2018 to August of 2019. These
children are old enough to understand and appreciate these cases and the
circumstances which gave rise to these cases. [Mother] expressed that she
wants to engage in counseling with the children. This is not a bad idea.
However, this would only work if the children are able and willing to do so.
Licking County, Case No. 2020 CA 00044 7
Counseling isn’t something that will make it all better in a couple of weeks.
It may take months and given where this case stands, it is unlikely that a
single extension of temporary custody would give enough time for this
counseling to be successful enough for reunification to occur.
(Magistrate’s Decision, Apr. 16, 2020).
{¶20} The Magistrate considered the statutory best interest factors and
recommended it was in the best interests of the children that permanent custody of A.G.
be granted to LCJFS. The Magistrate ordered that S.B. be placed in a PPLA with LCJFS.
{¶21} On June 1, 2020, Mother filed objections to the Magistrate’s Decision.
{¶22} On June 19, 2020, the trial court overruled Mother’s objections and adopted
the Magistrate’s Decision. It is from this judgment entry that Mother now appeals.
ASSIGNMENTS OF ERROR
{¶23} Mother raises two Assignments of Error:
{¶24} “I. THE TRIAL COURT’S DECISION GRANTING PERMANENT CUSTODY
OF A.G. AND PPLA OF S.B. TO LCDJFS IS NOT SUPPORTED BY CLEAR AND
CONVINCING EVIDENCE, THE AGENCY DID NOT PROVE THAT A.G. CANNOT OR
SHOULD NOT BE PLACED WITH MOTHER WITHIN A REASONABLE TIME, DID NOT
MAKE THE STATUTORY SHOWINGS FOR PPLA, AND DID NOT PROVE THAT
GRANTING EITHER MOTION WAS IN THE CHILD’S BEST INTEREST.
{¶25} “II. WHETHER THE TRIAL COURT’S DECISION GRANTING
PERMANENT CUSTODY IS SUPPORTED BY CLEAR AND CONVINCING EVIDENCE,
WHETHER THE AGENCY MADE THE NECESSARY STATUTORY SHOWINGS IN
Licking County, Case No. 2020 CA 00044 8
SUPPORT OF ITS PPLA MOTION, AND WHETHER EITHER OF THESE MOTIONS
WAS IN THE BEST INTEREST OF THE CHILD.”
ANALYSIS
I. and II.
{¶26} In her two Assignments of Error, Mother argues the trial court erred when it
granted permanent custody of A.G. to LCJFS and granted LCJFS’s motion to place S.B.
in a planned permanent living arrangement with LCJFS. We separately consider Mother’s
arguments as to each child’s dispositional order.
A.G. and Permanent Custody
{¶27} Mother contends in her first and second Assignment of Error that the
judgment of the juvenile court to grant permanent custody of A.G. to LCJFS was not
supported by clear and convincing evidence, nor was the judgment in the best interest of
the child. We disagree.
Standard of Review
{¶28} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. 2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
Licking County, Case No. 2020 CA 00044 9
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
the essential elements of the case supports the trial court's judgment, an appellate court
must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶29} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties'
demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
{¶30} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon the filing of a motion for permanent custody
of a child by a public children services agency.
{¶31} Pursuant to R.C. 2151.414(B)(1), the trial court may grant permanent
custody of a child to a movant if the court determines at the hearing, by clear and
convincing evidence, that it is in the best interest of the child 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, or has not been in the temporary custody of one or more
Licking County, Case No. 2020 CA 00044 10
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 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.
(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. * * * *.
Licking County, Case No. 2020 CA 00044 11
{¶32} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time or should not
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶33} R.C. 2151.414(B) establishes a two-pronged analysis the trial court must
apply when ruling on a motion for permanent custody. In practice, a trial court will usually
determine whether one of the four circumstances delineated in R.C. 2151.414(B)(1)(a)
through (e) is present before proceeding to a determination regarding the best interest of
the child. Pursuant to R.C. 2151.414(D)(1), in determining the best interest of a child in a
permanent custody proceeding, the court shall consider all relevant factors.
12 Out of 22 Months
{¶34} In the Magistrate’s Decision, the Magistrate notes that A.G. was placed in
the temporary custody of LCJFS on December 31, 2018, “some 13 months before this
hearing.” (Magistrate’s Decision, Apr. 16, 2020). R.C. 2151.414(B)(1)(d) allows the
juvenile court to grant permanent custody when 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. When calculating
this time period, however, “the time that passes between the filing of a motion for
permanent custody and the permanent-custody hearing does not count toward the 12-
Licking County, Case No. 2020 CA 00044 12
month period set forth in R.C. 2151.414(B)(1)(d).” In re Dylan B., 5th Dist. Stark No. 2007-
CA-00362, 2008-Ohio-2283, 2008 WL 2025086, ¶ 24.
{¶35} In the case sub judice, the children were removed from the home on
October 3, 2018. They were adjudicated dependent and placed in the temporary custody
of LCJFS on December 31, 2018. LCJFS filed its motion for permanent custody on August
29, 2019. December 31, 2018 to August 29, 2019 was a period of seven months and 20
days. When LCJFS filed its motion for permanent custody, A.G. had not been in the
temporary custody of LCJFS for twelve or more months of a consecutive twenty-two-
month period. At the time of the hearing, A.G. had been in the temporary custody of
LCJFS for 12 months and 14 days. The trial court’s mention of R.C. 2151.414(B)(1)(d) as
one of the reasons to grant permanent custody of A.G. to LCJFS is not decisive of the
ultimate issue of custody. “If a ground other than R.C. 2151.414(B)(1)(d) exists to support
a grant of permanent custody, the agency may move for permanent custody on that other
ground.” In re Dylan B., 5th Dist. Stark No. 2007-CA-00362, 2008-Ohio-2283, 2008 WL
2025086, ¶ 26 citing In re: C. W.,104 Ohio St.3d 167, 2004-Ohio-6411 at ¶ 27, 818 N.E.2d
at 1180. LCJFS moved for permanent custody of A.G. on other grounds and the juvenile
court found those were demonstrated by clear and convincing evidence.
Reasonable Efforts
{¶36} Mother contends the juvenile court erred when it found that A.G. could not
be placed with Mother within a reasonable time. The juvenile court relied upon R.C.
2151.414(E)(1) and (4) in making its decision. The relevant statutory provisions state:
(E) In determining at a hearing held pursuant to division (A) of this section
or for the purposes of division (A)(4) of section 2151.353 of the Revised
Licking County, Case No. 2020 CA 00044 13
Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code 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.
***
(4) The parent has demonstrated a lack of commitment toward the child by
failing to regularly support, visit, or communicate with the child when able
Licking County, Case No. 2020 CA 00044 14
to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
{¶37} Mother argues by evidence of the completion of her case planning
objectives, she did not fail continuously and repeatedly to substantially remedy the
conditions that caused the child to be placed outside the child's home. Mother also
contends LCJFS did not engage in reasonable case planning nor did it make diligent
efforts in this case because it unambiguously refused to facilitate visitation between
Mother and the children. Mother states that when the children stated they did not want to
visit with Mother, LCJFS made no further attempts promote Mother’s relationship with her
children.
{¶38} The juvenile court described Mother’s efforts during the pendency of the
case as having “mixed results.” (Magistrate’s Decision, Apr. 16, 2020). We agree with the
juvenile court’s characterization of Mother’s efforts. The juvenile court found that Mother
failed to remedy the problems that initially caused the children to be placed outside of the
home and demonstrated a lack of commitment toward the child by failing to regularly
support, visit, or communicate with the child when able to do so, or by other actions
showing an unwillingness to provide an adequate permanent home for the child. Mother
contends the completion of her case plan objectives is evidence that she remedied the
problems and has a willingness to provide an adequate home for the children. Mother
had a significant substance abuse issue, which she did not address for the first six months
of the case. She started treatment in June 2019 and had maintained her sobriety at the
time of the hearing. She did report using marijuana to celebrate her birthday. Mother had
inconsistent housing. Her longest period with stable housing was with J.G. through the
Licking County, Case No. 2020 CA 00044 15
fall of 2019. She obtained a voucher for housing and independently moved into an
apartment one week before the hearing. Mother completed parenting classes. Mother had
no income, but she was applying for jobs and Social Security disability income. She did
some house cleaning.
{¶39} The record in this case shows Mother exhibited a lack of commitment
towards her children by failing to regularly support, visit, or communicate with them when
she was able to do so. We will further discuss this argument in the best interest analysis,
but Mother contends it was not her lack of commitment but the failure of LCJFS to facilitate
the relationship between her and the children; therefore, there was no reasonable case
planning and diligent efforts by the agency to assist Mother. It is an undisputed fact that
Mother disappeared from the lives of her children from October 2018 to July 2019 to
pursue her drug addiction. During the time their Mother was gone, her teenaged children
moved forward with their lives in new homes. Mother entered substance abuse treatment
in June 2019. In July 2019, Mother reengaged with Gladstone and wanted to reconnect
with her children. At that time, S.B. was 16 years old and A.G. was 14 years old. S.B. had
been in the same foster home and was working towards independent living, as he was
only two years away from being a legal adult. A.G. had been in four foster placements,
the last being a foster-to-adopt home where the family was interested in pursuing
adoption. Gladstone asked the children if they would meet with Mother and they refused.
The GAL reported the children would not meet with Mother. The children’s case manager
recommended that the children not meet with Mother. Mother did not file a contempt
motion against LCJFS for lack of visitation.
Licking County, Case No. 2020 CA 00044 16
{¶40} As the juvenile court noted, counseling between Mother and children would
be a good idea but was not feasible. The children were not willing to work on the
relationship and based on the status of the case and the age of the children, a single
extension of temporary custody might not be enough time to repair the relationship to
allow reunification.
{¶41} LCJFS gave Mother visitation with the children and Mother attended only
one visit before disappearing until July 2019. The children’s refusal to meet with Mother
when she chose to return was the consequence of Mother’s disappearance from her
children’s lives. We cannot say in this case that LCJFS did not use diligent efforts to
facilitate a relationship between Mother and her teenaged children.
Best Interests
{¶42} The next step in the analysis is whether LCJFS showed by clear and
convincing evidence that a grant of permanent custody was in the best interest of the
children. R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child's best interests would be served by granting the permanent
custody motion. Those 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;
(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
Licking County, Case No. 2020 CA 00044 17
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;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
{¶43} Mother’s successful completion of a case plan is not dispositive on the issue
of reunification. In re B.P., 5th Dist. Licking No. 2000 CA 00031, 2020-Ohio-3734, 2020
WL 4013125, ¶ 32 citing In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604.
While it may be in Mother's best interest to complete the case plan, this is only one factor
for a trial court to consider what is in the best interest of the child. In re A.H., 5th Dist.
Richland No. 18CA96, 2019-Ohio-1509, 2019 WL 1777306, ¶ 38. Where a parent has
participated in his case plan and completed most or all of the plan requirements, a trial
court may still properly determine that such parent has not substantially remedied the
problems leading to agency involvement. In re A.H., 5th Dist. Richland No. 18CA96, 2019-
Ohio-1509, 2019 WL 1777306, ¶ 39 citing In the Matter of A.L. and J.L., 5th Dist.
Guernsey No. 11 CA 23, 2012-Ohio-481.
Licking County, Case No. 2020 CA 00044 18
{¶44} The wishes of the children were expressed through the children’s
statements to the GAL. The GAL report filed on January 3, 2020 stated the children both
expressed that they did not want to visit or live with Mother. The GAL recommended it
was in the best interests of A.G. to be placed in the permanent custody of LCJFS and
S.B. placed in PPLA with LCJFS.
{¶45} Mother contends the juvenile court could not make a determination as to
the interaction and interrelationship with the child and parent because Mother had not
been permitted to visit with the children since July 2019. In support of her argument, she
cites this Court to In re C.S., 9th Dist. Summit No. 25344, 2010-Ohio-4463. In that opinion,
the majority held the juvenile court’s award of permanent custody was against the weight
of the evidence because the child had not visited with mother for 18 months. The case
plan allowed for visitation but with parameters due to the mother’s history of abuse of the
child. The mother did not follow the parameters and the agency would not permit
visitation. The juvenile court granted permanent custody, but the Ninth District reversed,
holding it could not say the agency made reasonable efforts toward reunification or that it
was in the best interests of the child by granting permanent custody because there was
no evidence of the interaction or interrelationship with the child and the mother. Id. at ¶
10. In dissent, Judge Carr noted that limitations or restrictions on visitations based on the
well-being of the child were common in cases of children adjudicated dependent or
neglected. Id. at ¶ 60. The agency did not deny the mother visitation. The mother failed
to abide by the limitations put in place by the agency and therefore, visitation could not
occur. Id. at ¶ 62-63. “The only person who foreclosed the opportunity for visitation
between Mother and the child was Mother herself. It does not further the best interests of
Licking County, Case No. 2020 CA 00044 19
children to allow their parents to balk at the requirements designed to ensure the safety
of their children during visitation and then cry procedural foul when their parental rights
have been terminated.” In re C.S., 9th Dist. Summit No. 25344, 2010-Ohio-4463, 2010
WL 3683392, ¶ 63 (Carr, dissenting).
{¶46} The facts of In re C.S. are different from those in the present case. In our
case, it was the children who refused visitation with Mother and LCJFS supported the
children’s choice based on their well-being. The reason for refusing visitation, however,
was similar to that in In re C.S. LCJFS did not deny Mother visitation at the inception of
the case. Mother foreclosed the opportunity for visitation with her children when she
attended one visit with the children and disappeared from the children’s lives.
{¶47} Based on the evidence in the record, we find the juvenile court’s award of
permanent custody of A.G. to LCJFS was not against the manifest weight of the evidence.
LCJFS presented evidence to allow the juvenile court to find, by clear and convincing
evidence, that the award of permanent custody was in the best interest of A.G. A.G. is a
teenager who expressed a desire to remain with her foster-to-adopt family and achieve
permanence and stability. We affirm.
S.B. and PPLA
{¶48} Mother next argues that LCJFS failed to meet its burden by clear and
convincing evidence that S.B. should be placed in a PPLA with LCJFS. We disagree.
{¶49} A planned permanent living arrangement, or PPLA, is defined as a juvenile
court order that: (1) gives a public children services agency legal custody of a child without
terminating parental rights; and (2) also lets the agency “make an appropriate placement
of the child and to enter into a written agreement with a foster care provider or with another
Licking County, Case No. 2020 CA 00044 20
person or agency with whom the child is placed.” R.C. 2151.011(A)(38). Both R.C.
2151.353 and R.C. 2151.415 contain provisions that allow PPLAs to be granted in juvenile
cases.
{¶50} In this case, LCJFS filed a Motion to Modify Disposition pursuant to R.C.
2151.415(A)(5) and (C)(1)(c), requesting an order for placing S.B. in a PPLA with LCJFS.
R.C. 2151.415(A) states:
(A) * * * [A] public children services agency * * * that has been given
temporary custody of a child pursuant to section 2151.353 of the Revised
Code, * * * shall file a motion with the court that issued the order of
disposition requesting that any of the following orders of disposition of the
child be issued by the court:
***
(5) An order that the child be placed in a planned permanent living
arrangement;
***
{¶51} If a PPLA is requested, R.C. 2151.415(C)(1) outlines the following
evidentiary standard for which the juvenile court to determine if a PPLA is appropriate:
(C)(1) If an agency pursuant to division (A) of this section requests the court
to place a child into a planned permanent living arrangement, the agency
shall present evidence to indicate why a planned permanent living
arrangement is appropriate for the child, including, but not limited to,
evidence that the agency has tried or considered all other possible
dispositions for the child. A court shall not place a child in a planned
Licking County, Case No. 2020 CA 00044 21
permanent living arrangement, unless it finds, by clear and convincing
evidence, that a planned permanent living arrangement is in the best
interest of the child, that the child is sixteen years of age or older, and that
one of the following exists:
(a) The child, because of physical, mental, or psychological problems or
needs, is unable to function in a family-like setting and must remain in
residential or institutional care.
(b) The parents of the child have significant physical, mental, or
psychological problems and are unable to care for the child because of
those problems, adoption is not in the best interest of the child, as
determined in accordance with division (D)(1) of section 2151.414 of the
Revised Code, and the child retains a significant and positive relationship
with a parent or relative;
(c) The child has been counseled on the permanent placement options
available, is unwilling to accept or unable to adapt to a permanent
placement, and is in an agency program preparing for independent living.
{¶52} If a PPLA is granted, R.C. 2151.415(C)(2) requires the following:
If the court issues an order placing a child in a planned permanent living
arrangement, both of the following apply:
(a) The court shall issue a finding of fact setting forth the reasons for its
finding;
Licking County, Case No. 2020 CA 00044 22
(b) The agency may make any appropriate placement for the child and shall
develop a case plan for the child that is designed to assist the child in finding
a permanent home outside of the home of the parents.
{¶53} There is no dispute that at the time of the hearing, S.B. was 16 years old.
As of the date of this opinion, S.B. is now 17.5 years old.
{¶54} At the hearing, LCJFS presented evidence that S.B. been counseled on the
permanent placement options available, was unwilling to accept or unable to adapt to a
permanent placement, and was in an agency program preparing for independent living.
Gladstone and the GAL reported that S.B. was counseled on his permanent placement
options and he was consistent with his desire to stay in his foster home without adoption.
He did not want to visit or live with Mother or his father. The case plan filed on October
30, 2018 stated that S.B. would be provided an independent living social worker who
would work with him on independent living skills. The amended case plans included
training in independent living skills for S.B.
{¶55} Based on our analysis of best interest for A.G., we likewise find the evidence
presented by LCJFS supports the juvenile court’s determination it was in the best interest
of S.B. to be placed in a PPLA with LCJFS.
{¶56} We find pursuant to R.C. 2151.415(C)(1) and (C)(2), there was clear and
convincing evidence to support the juvenile court’s determination that S.B. be placed in a
PPLA with LCJFS.
Licking County, Case No. 2020 CA 00044 23
CONCLUSION
{¶57} Based on the foregoing, we overrule Mother’s two Assignments of Error.
{¶58} The judgment of the Licking County Court of Common Pleas, Juvenile
Division is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Wise, Earle, J., concur.