In re B.T.

[Cite as In re B.T., 2023-Ohio-2082.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
IN THE MATTER OF: B.T. & D.T. :
:
: C.A. No. 2022-CA-86
:
: Trial Court Case Nos. 20210430;
: 20210431
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
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OPINION
Rendered on June 23, 2023
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ROBERT ALAN BRENNER, Attorney for Appellant, Mother
ANDREW P. PICKERING, Attorney for Appellee, Clark County Department of Job and
Family Services
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WELBAUM, P.J.
{¶ 1} Mother appeals from two judgments of the Clark County Court of Common
Pleas, Juvenile Division, which terminated her parental rights and granted permanent
custody of her son, B.T., and daughter, D.T., to the Clark County Department of Job and
Family Services (“CCDJFS”). For the reasons outlined below, the trial court’s judgments
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granting CCDJFS permanent custody of B.T. and D.T. will be affirmed.
Facts and Course of Proceedings
{¶ 2} Mother and Father are the biological parents of five-year-old B.T. and three-
year-old D.T. Mother also has two other children with a different father, thirteen-year-old
A.B. and ten-year-old C.B. Prior to 2021, all four children resided with Mother at her
home in Springfield, Ohio.
{¶ 3} On August 25, 2021, CCDJFS filed a dependency complaint pertaining to
B.T. and D.T. In the complaint, CCDJFS alleged that it became involved with Mother in
early 2021 due to referrals concerning the condition of Mother’s home, truancy issues
pertaining to A.B. and C.B., and Mother’s drug use and mental health. Specifically,
CCDJFS alleged that in March 2021, Mother’s home smelled of marijuana and was ridden
with trash, dirt, and cockroaches. CCDJFS also alleged that Mother had been arrested
and jailed on truancy charges and had tested positive for tetrahydrocannabinol1 (“THC”)
in April 2021. CCDJFS further alleged that Mother had had a prior children services case
in 2017, due to substantiated physical abuse, neglect, and emotional maltreatment.
{¶ 4} Prior to the filing of the dependency complaint, B.T. and D.T. were briefly
placed with their maternal grandmother as part of a safety plan. However, the children
were removed from maternal grandmother’s care after maternal grandmother submitted
to a drug screen and tested positive for THC, oxycodone, and cocaine. B.T. and D.T.
Tetrahydrocannabinol is the main psychoactive compound found in marijuana. State v.
1
Reeder, 3d Dist. Allen Nos. 1-21-08, 1-21-09, 1-21-10, 2021-Ohio-4558, ¶ 32; State v.
Graves, 5th Dist. Ashland No. 22 COA 001, 2022-Ohio-4130, ¶ 5.
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were then placed with the O Family, who were family friends of Father. The O Family
cared for B.T. and D.T. for approximately five months before they requested to have the
children removed from their home due to the family’s negative interactions with Mother.
As a result of this request, CCDJFS filed motions requesting interim temporary custody
of B.T. and D.T., which the trial court granted on September 17, 2021. Three months
later, the trial court adjudicated B.T. and D.T. dependent children on December 2, 2021.
{¶ 5} In August 2021, Father signed a case plan participation waiver stating that
he did not want to work on a case plan to reunify with B.T. and D.T. Mother, on the other
hand, attempted to work on a case plan to reunify with her children. Approximately a
year after Mother’s case plan went into effect, CCDJFS filed motions on July 26, 2022,
requesting that it be granted permanent custody of B.T. and D.T. on grounds that Mother
had not made substantial progress on her case plan.
{¶ 6} On October 17, November 16, and November 18, 2022, the trial court held
evidentiary hearings on the permanent custody motions pertaining to B.T. and D.T. In
support of those motions, CCDJFS presented testimony from the assigned caseworker,
Sierra Errett; Parenting Network Coordinator Jordan Rose; Family Court Treatment
Coordinator Traci Schwartz-Sullivan; and the children’s guardian ad litem (“GAL”),
Amanda Lantz. Mother presented testimony from her drug and alcohol counselor,
Veronica Bellamy, and also testified on her own behalf. The following is a summary of
the testimony that was presented at the evidentiary hearings.
Sierra Errett
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{¶ 7} Sierra Errett was the CCDJFS caseworker assigned to Mother’s case.
Beginning in May 2021, Errett worked with Mother and Father on developing a case plan
to reunify with B.T. and D.T. Errett confirmed that, in August 2021, Father signed a
waiver indicating that he did not want to work on a case plan and that he had not visited
the children since that time. Mother, on the other hand, attempted to work on a case
plan that included the following objectives:
▪ complete a drug and alcohol assessment and follow through with
recommendations;
▪ complete a mental health assessment and follow through with
recommendations;
▪ submit to random drug screens;
▪ obtain independent, safe, stable, and clean housing with working
utilities;
▪ obtain employment to meet the financial needs of her family;
▪ engage in visitation and meet the needs of her children during
visitation;
▪ engage in drug screens through juvenile court and follow through
with all recommendations of juvenile court;
▪ engage in a parenting program and follow through with
recommendations;
▪ meet with the caseworker monthly and communicate with the
caseworker weekly; and
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▪ sign all releases of information.
{¶ 8} Errett testified that, in an effort to assist Mother with completing these
objectives, CCDJFS referred Mother to multiple counseling agencies and provided
Mother with information on housing that was offered through a program called Project
Woman. Since Mother did not have a valid driver’s license, CCDJFS also provided
Mother with a transportation referral through Rides Plus so that Mother could visit her
children. In addition, Errett testified that CCDJFS conducted AQUIRANT searches for
relatives and made referrals for home studies on relatives that Mother had suggested as
possible placements.
{¶ 9} During her testimony, Errett confirmed that B.T. and D.T. had initially been
placed with their maternal grandmother until maternal grandmother tested positive for
THC, oxycodone, and cocaine. Errett also confirmed that B.T. and D.T. were thereafter
placed with the O Family until they asked to have the children removed from their care
due to negative interactions with Mother. According to Errett, the O Family was tired of
Mother’s harassing them and pressuring them to violate court orders.
{¶ 10} Errett testified that Mother provided her maternal aunt and sister-in-law as
possible placement options. Errett testified that CCDJFS began a home study on the
maternal aunt, but it placed the study on hold after determining that maternal aunt’s
residence did not have any beds for the children and due to concerns about certain
individuals who stayed at her residence. Specifically, CCDJFS was concerned about
Mother’s uncle, who was a registered sex offender, and maternal grandmother, who was
a known drug user. In addition, CCDJFS was concerned that the maternal aunt would
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be susceptible to Mother’s pressuring her to violate court orders.
{¶ 11} Errett testified that Mother’s sister-in-law initially showed interest in taking
custody of the children but ultimately declined to be a placement option when she learned
of the need to submit to a home study. Errett also reached out to a second sister-in-law
who similarly declined to be a placement option when it came time to schedule a home
study.
{¶ 12} With regard to Mother’s case plan objectives, Errett testified that Mother had
obtained a drug and alcohol assessment and had been engaging in drug and alcohol
counseling at a treatment center called CleanSlate. Errett also testified that Mother had
been engaging in parenting classes through the Parenting Network. In addition, Errett
confirmed that Mother had signed all releases for information.
{¶ 13} Errett’s testimony also indicated that Mother had been engaging in drug
screens through three different programs, i.e., CCDJFS, Clark County Juvenile Court,
and CleanSlate. However, according to Errett, the drug screen results established that
Mother had consistently tested positive for THC and suboxone and, on one occasion,
cocaine. Errett testified that Mother did not always provide accurate, up-to-date
prescriptions for her suboxone use and never presented a medical marijuana card.
Errett also testified that Mother had occasionally declined to participate in drug screens,
which counted as an automatic positive result. In addition, Errett testified regarding an
incident in which Mother had attempted to alter a drug screen by purposely chewing up
the mouth swab and dropping it on the ground. Errett further testified that Mother would
often show up to screens smelling heavily of mouthwash, which was known to alter the
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screen.
{¶ 14} Continuing, Errett testified that Mother had completed a mental health
assessment but had not followed through with referrals for mental health counseling.
Errett indicated that this was one of the most important components of Mother’s case
plan. Errett also testified that Mother did not consistently communicate with her and
failed to meet with her once a month as required by the case plan. Errett explained that
it was her practice to give Mother three meeting dates to choose from each month and
that Mother would often not attend any of the dates offered. Errett asserted that Mother
would make excuses not to attend office visits and would be highly emotional and hesitant
to provide information when she did visit. In addition, Errett testified that Mother was not
employed at the time of the hearing and that Mother’s previous employment consisted of
various jobs that Mother had maintained for only a short period of time.
{¶ 15} As for the visitation objective, Errett testified that Mother visited all four of
her children once a week for three hours at CCDJFS’s visitation center. Errett testified
that there were concerns with Mother’s visitation because she often showed up late to
visits. Errett explained that showing up late was a concern because the children used
the Rides Plus transportation service to get to the visitation center. According to Errett,
the Rides Plus driver cannot wait for Mother to arrive because the driver has other visits
to transport. Errett also testified that Mother had missed three visits without calling and
that the missed visits resulted in Mother’s visitation being put on hold for a period of time.
Errett testified that Mother used lack of transportation as an excuse for missing the visits
even though CCDJFS provided her with a Rides Plus referral.
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{¶ 16} Errett also testified that Mother had not fulfilled the objective to obtain safe,
stable housing. Errett testified that the cleanliness of Mother’s home was no longer a
concern, but she explained that the home was not a safe location due to its being the
target of multiple shootings. Errett testified that Mother had reported concerns about the
safety of her residence and had expressed her belief that the shootings were the result
of Father’s using drugs and owing people money.
{¶ 17} Errett testified that one of the shooting incidents took place while Mother
and Father had unauthorized visitation with B.T. and D.T. Errett testified that the O
Family had reported the shooting to her and told her that it had occurred after they had
permitted Mother and Father to drive the children to Mother’s home following a visit at a
local entertainment center. The O Family told Errett that they were traveling behind
Mother and Father’s vehicle when they observed shots fired at the vehicle as it pulled into
Mother’s residence. According to Errett, the residence was considered so dangerous
that the juvenile court had ordered her and the other individuals working on the case not
to visit the home. Errett testified that Mother had recently reported that she was going
to move to an apartment, but she did not yet have a lease and was still at the same
residence.
{¶ 18} In addition to the case plan objectives, Errett testified regarding concerns
about Mother’s being in the presence of Father despite prior incidents of domestic
violence between them and despite Mother’s obtaining a protection order against Father.
Errett testified that Mother and Father’s unhealthy relationship posed a risk to the children
because the children were not old enough to protect themselves if a physical altercation
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were to transpire between Mother and Father.
{¶ 19} In summary, Errett testified that Mother had not made substantial progress
on her case plan and would not be in a place to reunify with her children even if she were
given more time to work on her case plan objectives. Errett indicated that the children
were in a foster-to-adopt placement at that time, where they were doing well and had all
their needs met. Errett testified that the children had been in their current foster home
for over one year and were bonded to their foster mother. It was Errett’s opinion that the
best interest of the children would be served by granting permanent custody to CCDJFS.
Jordan Rose
{¶ 20} Jordan Rose was a coordinator at the Family & Youth Initiatives Parent
Network, a free program that Mother had been using for parenting classes. Rose
confirmed that Mother had been a client of the Parenting Network since June 8, 2021,
and had last attended a parenting class on October 4, 2022. Rose indicated that Mother
had completed “a decent amount” of parenting classes but declined to describe the
number of classes completed as being “substantial.” Tr. (Nov. 16, 2022), p. 237.
Specifically, Rose testified that Mother had attended 18 out of 34 possible classes. Rose
also testified that there had been a period of three months in which Mother did not attend
class at all. Rose also indicated that there were two occasions when Mother showed up
to class but failed to complete her homework. Although Rose testified that Mother had
grown as a parent and was fit to parent her children, Rose admitted that she had never
observed Mother with her children and that her opinion of Mother’s parenting was based
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solely off of her classwork.
Traci Schwartz-Sullivan
{¶ 21} Traci Schwartz-Sullivan was the Family Treatment Court Coordinator who
monitored Mother’s participation in the juvenile court’s random drug screening program.
Sullivan testified that the court magistrate ordered Mother to sign up for the drug
screenings and that Mother began the screenings on March 1, 2022. Sullivan testified,
however, that Mother had been inconsistent in calling every day to see if she had been
selected to be screened and that Mother had missed 32 screens over a period of 270
days. Sullivan also presented documentation showing that when Mother had been
screened, she had consistently tested positive for THC and suboxone (buprenorphine),
and occasionally for alcohol as well. See State’s Exhibit 2.
Amanda Lantz
{¶ 22} The testimony of Amanda Lantz, the children’s appointed GAL, supported
Errett’s testimony regarding Mother’s lack of communication and failure to complete her
case plan objectives. Like Errett, it was Lantz’s opinion that Mother had not made
substantial progress on her case plan and that Mother would not be able to substantially
complete her case plan within six months. Lantz also testified that she believed Mother
had unresolved mental health issues. Lantz testified that because Mother had not
completed her mental health objective, it was not in the children’s best interest to be
placed with Mother. Lantz also testified that “trouble seems to follow [Mother]” and that
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the children would not be safe in Mother’s care regardless of where she lived. Tr. (Nov.
18, 2022), p. 476. Furthermore, in her reports, Lantz indicated that Mother was
manipulative and uncooperative.
{¶ 23} As for the children, Lantz testified that B.T. and D.T. were doing “fantastic”
with their current foster mother and were thriving in her care. Id. at 471. Lantz also
testified that the foster mother was open to adopting B.T. and D.T. and would follow court
orders to keep certain individuals away from the children. In addition, Lantz testified that
the foster mother facilitated visits with B.T. and D.T.’s half siblings and planned to
maintain communication between them. Lantz further testified that foster mother had
custody of her own grandson and that there were no concerns with B.T. and D.T.’s
interactions with the grandson.
Veronica Bellamy
{¶ 24} Veronica Bellamy, a clinical counselor at an addiction treatment center in
Springfield, Ohio, known as CleanSlate, testified that she had provided Mother with drug
and alcohol addiction counseling at CleanSlate since June 13, 2022. According to
Bellamy, Mother’s history of drug use included abusing opiates such as percocet and
oxycodone. Bellamy also testified that Mother had admitted to purchasing suboxone off
the street. According to Bellamy, the physicians at CleanSlate prescribe Mother
suboxone once a week for purposes of curbing her withdrawals and cravings. Bellamy
testified that Mother was screened for drugs during every visit at CleanSlate and that
Mother had tested positive for THC during every screen. Bellamy noted, however, that
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Mother’s THC levels had been consistently dropping and that, but for the THC use, Mother
had made progress with maintaining her sobriety.
{¶ 25} On cross-examination, Bellamy confirmed that she did not provide mental
health counseling and claimed that she was unaware that the physicians at CleanSlate
had made a referral for Mother to receive mental health counseling. Bellamy had also
been unaware that mental health counseling was a component of Mother’s case plan.
Mother
{¶ 26} Mother testified that on November 5, 2022 (approximately two weeks before
her testimony), she had moved out of the residence that had been the target of multiple
shootings. Mother testified that she had obtained a two-bedroom apartment “on Friday
or Saturday” but was then living at a friend’s house while she and the landlord worked on
improvements to the apartment. Tr. (Nov. 16, 2022), p. 274-275. Mother testified that
she had not yet signed a lease for the apartment but had paid a $575 deposit. Mother
testified that she did not know when the apartment would be finished and did not know
whether the apartment was safe.
{¶ 27} Mother also testified that she had been engaged in drug and alcohol
counseling at CleanSlate. Mother presented a September 26, 2022 letter from her
CleanSlate counselor, Bellamy, stating that Mother had been a patient at CleanSlate
since April 13, 2021. The letter also indicated that, as of September 26, 2022, Mother
had attended all of her scheduled appointments at CleanSlate and had tested negative
for opioids during the center’s drug screens. See Mother’s Exhibit E.
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{¶ 28} Continuing, Mother testified that CleanSlate had referred her to PATH
Integrated Health (“PATH”) for mental health services. In support of this testimony,
Mother presented a June 7, 2021 letter written by a CleanSlate physician’s assistant
stating that Mother would be attending counseling at PATH. See Mother’s Exhibit G.
Mother claimed that she had received a mental health assessment at PATH and had
engaged in mental health counseling there for “close to one year” until her counselor left.
Tr. (Nov. 16, 2022), p. 254. Mother claimed that she then signed up for counseling at
CleanSlate, which she thought qualified as mental health counseling. Mother testified
that it was not until October 2022 that she learned CleanSlate was not accredited to
provide mental health services.
{¶ 29} Mother also confirmed that she was not then employed. Mother claimed
that she previously had worked at ORBIS, Target Distribution, and Certified Oil. Mother
testified that she had worked at ORBIS for three months in 2022, but she could not recall
when and how long she had worked at Target Distribution and Certified Oil. During her
testimony, Mother could not recall several other dates and events and attributed her
memory loss to early onset Alzheimer’s disease, a condition that she never reported to
CCDJFS.
{¶ 30} Mother also testified that she had only missed a few drug screens and
claimed that her caseworker had lied about her intentionally trying to alter some of the
screens. Mother did, however, admit that she had a history of maintaining negative drug
screens while still using drugs. Specifically, Mother testified that she had been able to
graduate from a treatment program at McKinley Hall while still using drugs because she
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“worked the program,” which only screened once a week. Tr. (Nov. 16, 2022), p. 289.
{¶ 31} Mother also admitted to consistently testing positive for THC and suboxone.
Mother testified that she used marijuana every day and did not have a medical marijuana
card. But Mother claimed that she had been approved for a medical marijuana card just
two days before giving her testimony. Mother also suggested that her one positive test
result for cocaine had been a false positive.
{¶ 32} Mother further admitted to missing parenting classes at the Parenting
Network but claimed that she was making up the missed material. Mother also testified
that she did not have a valid driver’s license but admitted to driving herself to court on the
day of her testimony. When asked how Mother would transport B.T. to his speech
therapy if the children were placed back in her care, Mother testified that she would rely
on maternal grandmother, a known drug user. Mother also claimed that she was not in
a relationship with Father and noted that her protection order was still in place.
{¶ 33} Mother testified that she generally did not meet with her caseworker on a
monthly basis and expressed her belief that the caseworker had not been helping her.
Mother, however, later testified that her caseworker had tried to help her find housing and
made referrals and gave her phone numbers to call for mental health services. Mother
also claimed that she had been working her case plan and simply needed more time to
complete her case plan objectives.
{¶ 34} With regard to the custody of her children, Mother testified that she had
suggested her maternal aunt as a placement option. Mother indicated that maternal aunt
currently lived alone and that CCDJFS’s concerns about her uncle and mother staying at
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maternal aunt’s residence were no longer an issue. Mother also testified that she would
provide maternal aunt with the beds needed for her children. In addition, Mother testified
that a second aunt was interested in caring for her children, but she admitted to never
having advised CCDJFS of the second aunt’s interest in being a placement option.
The Trial Court’s Judgment
{¶ 35} After considering the testimony and exhibits presented at the permanent
custody hearings, the trial court found that Mother was not a credible witness and granted
CCDJFS’s motions for permanent custody of B.T. and D.T. Mother now appeals from
those judgments, raising a single assignment of error for review.
Assignment of Error
{¶ 36} Under her assignment of error, Mother contends that the trial court erred by
granting CCDJFS permanent custody of B.T. and D.T. Specifically, Mother claims that
the evidence presented at the permanent custody hearings established that she had
substantially complied with her case plan and that there was a viable kinship placement
with her maternal aunt. Upon review, we disagree with Mother’s claims.
General Standards
{¶ 37} “The United States Supreme Court has stated that parents’ interest in the
care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty
interests recognized by this Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21
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N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000). The Supreme Court of Ohio has also “long held that parents who are
‘suitable’ have a ‘paramount’ right to the custody of their children.” Id., quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). (Other citations omitted.)
“Permanent termination of parental rights has been described as ‘the family law
equivalent of the death penalty in a criminal case.’ * * * Therefore, parents ‘must be
afforded every procedural and substantive protection the law allows.’ ” In re Hayes, 79
Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16, 601
N.E.2d 45 (6th Dist.1991).
{¶ 38} That said, “ ‘the natural rights of a parent are not absolute, but are always
subject to the ultimate welfare of the child, which is the polestar or controlling principle to
be observed.’ ” In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),
quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App.1974). Therefore, “parental interests
are subordinate to the child’s interest when determining the appropriate resolution of a
petition to terminate parental rights.” B.C. at ¶ 20, citing Cunningham at 106.
{¶ 39} “[T]he [trial] court’s decision to terminate parental rights will not be
overturned if the record contains competent, credible evidence by which the court could
have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established.” (Citation omitted.) In re E.D., 2d
Dist. Montgomery No. 26261, 2014-Ohio-4600, ¶ 7. “On review, we give the trial court’s
final determination ‘the utmost respect, given the nature of the proceeding and the impact
the court’s determination will have on the lives of the parties concerned.’ ” In re G.B., 2d
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Dist. Greene No. 2017-CA-30, 2017-Ohio-8759, ¶ 8, quoting In re Alfrey, 2d Dist. Clark
No. 2001-CA-83, 2003-Ohio-608, ¶ 102. Accordingly, the trial court’s decision will not
be reversed absent an abuse of discretion. E.D. at ¶ 7, citing In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 48 (applying abuse-of-discretion standard to a
trial court’s findings under R.C. 2151.414).
R.C. 2151.414
{¶ 40} R.C. 2151.414 is the statute that governs the termination of parental rights
in Ohio. This statute provides a two-part test for courts to apply when determining
whether to grant a motion for permanent custody to a public services agency.
Specifically, the statute requires the trial court to find by clear and convincing evidence
that: (1) any one of the factors enumerated in R.C. 2151.414(B)(1)(a) through (e) exist;
and (2) an award of permanent custody to the agency is in the child’s best interest. R.C.
2151.414(B)(1). We will now address each of those requirements.
(1) Existence of Factor Under R.C. 2151.414(B)(1)(a) through (e):
{¶ 41} In awarding permanent custody to CCDJFS, the trial court determined that
the factor under R.C. 2151.414(B)(1)(b) existed with regard to Father. That factor
provides: “The child is abandoned.” R.C. 2151.414(B)(1)(b). In this case, it is
undisputed that Father abandoned B.T. and D.T., as Father signed a case plan waiver in
August 2021 and had not had contact with the children since that time.
{¶ 42} With regard to Mother, the trial court found that the factor under R.C.
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2151.414(B)(1)(a) existed. That factor provides: “The child is not abandoned or
orphaned, has not been in the temporary custody of one or more public 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.” R.C.
2151.414(B)(1)(a).
{¶ 43} When evaluating whether a child cannot be placed with the child’s parents
within a reasonable time or should not be placed with either parent, the court must
consider “all relevant evidence” and determine “by clear convincing evidence” whether
one or more of the factors listed under R.C. 2151.414(E)(1) through (E)(16) exist. R.C.
2151.414(E). If there is clear and convincing evidence showing that one or more of the
factors under section (E) exist, the trial court must “enter a finding that the child cannot
be placed with either parent within a reasonable time or should not be placed with either
parent.” R.C. 2151.414(E).
{¶ 44} The trial court in this case determined that factor (E)(1) existed by clear and
convincing evidence. Factor (E)(1) provides: “[N]otwithstanding reasonable case
planning and diligent efforts by the agency to assist the parent 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.” R.C. 2151.414(E)(1).
{¶ 45} Here, there is no dispute that CCDJFS developed a case plan for Mother
with specific objectives for her to complete so that she could reunify with B.T. and D.T.
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There is also no dispute that Mother was aware of the case plan and understood the
required objectives. Despite this, and despite Mother’s caseworker being very
accommodating with meetings and providing Mother with several referrals for counseling,
housing, and visitation services, Mother failed to make substantial progress on several of
her case plan objectives. Specifically, Mother did not communicate regularly with her
caseworker, failed to obtain employment and suitable housing, and did not follow through
with mental health counseling. In addition, Mother showed up late to visits with her
children and missed several parenting classes.
{¶ 46} Although the record establishes that Mother substantially complied with the
objectives to obtain drug and alcohol counseling and to submit to regular drug screens,
the results of Mother’s drug screens indicate that Mother never stopped using illegal drugs
during the pendency of this case. Specifically, Mother tested positive for THC and
suboxone on almost every drug screen she participated in, and, on one occasion,
cocaine. Furthermore, Mother did not have a medical marijuana card at the time she
screened and did not always provide prescriptions for her suboxone use.
{¶ 47} With regard to housing, we note that for most of this case, Mother continued
to reside at a home that was the target of multiple shootings. Although Mother testified
that she had moved out of that residence on November 5, 2022, (less than two weeks
before she testified at the November 16th permanent custody hearing), the record
nevertheless established that Mother had not yet obtained stable housing. At the time
of her testimony, Mother claimed that she was temporarily living at a friend’s house while
awaiting improvements to be completed on a two-bedroom apartment for which Mother
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did not yet have a lease. Significantly, Mother provided no timeframe for when the
apartment would be ready and could not say whether the apartment was located in a safe
area.
{¶ 48} Upon review, we find that there was clear and convincing evidence in the
record establishing that CCDJFS had made diligent efforts to assist Mother in reunifying
with B.T. and D.T. and that, despite those efforts, Mother failed to substantially remedy
her issues with drug use, housing, employment, and mental health. Accordingly, the trial
court’s finding that factor (E)(1) of R.C. 2151.414 existed with regard to Mother was not
an abuse of discretion. Given that factor (E)(1) applied to Mother, and given that Father
had abandoned the children, the trial court’s ultimate determination under R.C.
2151.414(B)(1)(a), i.e., that the children could not be placed with either parent within a
reasonable time or should not be placed with either parent, was not an abuse of
discretion.
(2) Best Interest Determination:
{¶ 49} Pursuant to R.C. 2151.414(D)(1), when determining whether an award of
permanent custody to a public services agency is in a child’s best interest, the trial court
is required to consider all relevant factors, including but not limited to, the following:
(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
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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 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; and
(e) Whether any of the factors in R.C. 2151.414(E)(7) through (11) are
applicable.
R.C. 2151.414(D)(1)(a)-(e).
{¶ 50} Like the findings under R.C. 2151.414(B) and (E), the trial court’s findings
under R.C. 2151.414(D)(1) must be supported by clear and convincing evidence. In re
K.W., 2d Dist. Clark No. 2013-CA-107, 2014-Ohio-4606, ¶ 7. In this case, the record
establishes that the trial court considered all the factors under R.C. 2151.414(D)(1) and
determined that it was in B.T. and D.T.’s best interest to grant CCDJFS permanent
custody. Based on the following, we find that there was clear and convincing evidence
in the record to support that finding.
(a) B.T. and D.T.’s Interaction and Interrelationship with Parents, Siblings, and
Foster Caregivers:
{¶ 51} B.T. and D.T. were only three years old and 17 months old when they were
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removed from Mother’s care in 2021. After their removal, Mother was only permitted to
have supervised visits with the children. Mother visited the children at the visitation
center once a week for three hours. Mother had had issues showing up late to visits,
and there were three instances when Mother failed to attend a visit without calling the
visitation center. These failures resulted in Mother’s visitation being put on hold for a
period of time. The children had not had contact with Father since he signed his case
plan waiver in August 2021.
{¶ 52} At the time of the last permanent custody hearing, B.T. and D.T. had been
with their current foster mother for one year. B.T. and D.T.’s placement with foster
mother is a foster-to-adopt placement. By all accounts, foster mother was meeting all of
the children’s needs. B.T. and D.T. were bonded to foster mother and were thriving in
her care. Foster mother’s grandson lived in the home with B.T. and D.T., and all of the
children interacted appropriately with one another. Foster mother facilitated visits with
B.T. and D.T.’s half siblings, who had been placed with another caregiver. Foster mother
had indicated a willingness to continue those visits so as to maintain a bond between the
children.
{¶ 53} This factor weighed in favor of granting permanent custody to CCDJFS.
(b) B.T. and D.T.’s Wishes:
{¶ 54} B.T. and D.T., who were approximately five and three years old at the time
of the permanent custody hearings, were not interviewed by the trial court and no
testimony was offered purporting to express their wishes. Accordingly, this factor neither
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weighed in favor nor against granting permanent custody to CCDJFS.
(c) Custodial History:
{¶ 55} B.T. and D.T., who were born in 2017 and 2019, had been in Mother’s care
until CCDJFS became involved with Mother in early 2021 due to concerns about the
conditions of Mother’s home and Mother’s drug use and mental health. During late
March/early April 2021, B.T. and D.T. were initially placed in the care of their maternal
grandmother. However, the children were removed from maternal grandmother’s care
after maternal grandmother tested positive for THC, oxycodone, and cocaine.
Thereafter, the children were placed with the O family. After approximately five months,
the O Family no longer wanted to serve as B.T. and D.T.’s caretakers due to negative
interactions with Mother. As a result, CCDJFS filed a motion for interim temporary
custody of the children, which the trial court granted on September 17, 2021. Since that
time, B.T. and D.T. had been in the custody of CCDJFS, and the children had been in two
different foster placements. At the time of the last permanent custody hearing, the
children had been in their current foster placement for a year (since November 2021).
When CCDJFS filed its motion for permanent custody, the children had not been in the
temporary custody of one or more public children services agencies or private child
placing agencies for 12 or more months of a consecutive 22-month period.
{¶ 56} The foregoing custodial history indicates that B.T. and D.T. had been placed
in and out of multiple custody arrangements. Given that the goal was for the children to
have permanency and stability, this factor weighed in favor of granting permanent custody
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to CCDJFS.
(d) The Children’s Need for Legally Secure Placement and Whether Such a
Placement Can Be Achieved Without Granting Permanent Custody to
CCDJFS:
{¶ 57} Father had abandoned B.T. and D.T. and Mother had failed to rectify the
issues that caused the children to be removed from her care. Before filing its motion for
permanent custody, CCDJFS researched Mother and Father’s relatives and attempted
kinship placements without success. As previously discussed, the children were
removed from maternal grandmother’s care after maternal grandmother tested positive
for illegal drugs. Father’s family friends, the O-Family, then took custody of the children
until they decided they no longer wanted custody due to negative interactions with Mother.
Father’s sisters declined to be a placement option as well.
{¶ 58} In this appeal, Mother argues that her maternal aunt was a viable kinship
placement option that the trial court overlooked when it granted permanent custody to
CCDJFS. Mother claims that maternal aunt simply needed beds for the children in order
to pass CCDJFS’s home study and that she (Mother) had offered to provide the beds so
that maternal aunt could get custody of the children. The record, however, established
that, in addition to not having beds for the children, maternal aunt was rejected as a
kinship placement because she would at times allow Mother’s uncle (a registered sex
offender) and maternal grandmother (a known drug user) to stay at her residence.
CCDJFS also had concerns that maternal aunt lived too close to Mother and would be
vulnerable to Mother’s persuading her to violate court orders. Accordingly, we disagree
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with Mother’s claim that maternal aunt was a viable kinship placement option.
{¶ 59} At the permanent custody hearing, Mother also suggested a second aunt
as a kinship placement option, but she admitted that she had never given CCDJFS the
aunt’s name. Mother also claimed that she had suggested her own father as a kinship
placement option. However, CCDJFS had conducted AQUIRANT searches to find
relatives and had sent letters to viable relatives with no response. Mother’s father and
second aunt would have likely shown up during CCDJFS’s search, and there was nothing
in the record indicating that they were viable placement options or that they had
expressed any interest in being a placement option. Accordingly, the record supported
the finding that the children were in need of a legally secure placement and that there
was no viable kinship placement available.
{¶ 60} This factor weighed in favor of granting permanent custody to CCDJFS.
(e) Whether Any of the Factors in R.C. 2151.414(E)(7) Through (11) are
Applicable:
{¶ 61} None of the factors in R.C. 2151.414(E)(7) through (11) were applicable to
Mother; therefore this factor neither weighed for nor against granting permanent custody
to CCDJFS.
{¶ 62} Based on the foregoing analysis, we find that there was competent, credible
evidence from which the trial court could have clearly and convincingly found that the
best-interest factors under R.C. 2151.414(D)(1) weighed in favor of granting CCDJFS
permanent custody of B.T. and D.T. Accordingly, the trial court did not abuse its
discretion by finding that it was in the children’s best interest to grant permanent custody
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to CCDJFS.
{¶ 63} Because the record contains competent, credible evidence satisfying both
parts of the two-part test in R.C. 2151.414(B)(1), the trial court did not err when it granted
permanent custody to CCDJFS.
{¶ 64} Mother’s assignment of error is overruled.
Conclusion
{¶ 65} Having overruled Mother’s sole assignment of error, the trial court’s
judgments granting CCDJFS permanent custody of B.T. and D.T. are affirmed.
.............
TUCKER, J. and HUFFMAN, J., concur.