[Cite as In re J.M., 2019-Ohio-1670.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                                :
         IN RE: J.M.                            :
                                                :   Appellate Case No. 28201
                                                :
                                                :   Trial Court Case No. 2015-5016
                                                :
                                                :   (Appeal from Common Pleas Court-
                                                :   Juvenile Division)
                                                :
                                                :

                                          ...........

                                          OPINION

                              Rendered on the 3rd day of May, 2019.

                                          ...........

MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 0095900, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee, MCCS

LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
    Attorney for Defendant-Appellant, Mother

                                         .............

HALL, J.
                                                                                       -2-


       {¶ 1} Mother appeals from the trial court’s judgment entry terminating her parental

rights and awarding appellee Montgomery County Children Services (“MCCS”)

permanent custody of her child, J.M.

       {¶ 2} In her sole assignment of error, Mother contends the trial court erred in

finding (1) that the child could not be placed with either parent within a reasonable time

or should not be placed with either parent, and (2) that awarding MCCS permanent

custody was in the child’s best interest.

       {¶ 3} The record reflects that Mother gave birth to J.M. in May 2015. MCCS filed a

complaint in August 2015 alleging that J.M was dependent and abused based on the child

testing positive for heroin at birth. The trial court adjudicated J.M. dependent in

September 2015. Thereafter, in February 2016, the trial court awarded temporary custody

to the child’s paternal grandmother. The trial court granted two extensions of temporary

custody, and J.M. remained with paternal grandmother until April 28, 2017, when police

conducted a drug raid of paternal grandmother’s residence. Following the raid, J.M. was

removed from paternal grandmother’s care and placed in the temporary custody of

MCCS, which found a foster home for the child. On June 29, 2017, MCCS moved for

permanent custody. Mother and paternal great grandmother also moved for legal custody.

Based on the evidence presented at a December 1, 2017 hearing, a magistrate awarded

MCCS permanent custody. Mother filed timely objections. On October 24, 2018, the trial

court filed a lengthy decision and judgment entry overruling Mother’s objections and

granting MCCS permanent custody. This appeal by Mother followed.

       {¶ 4} A trial court’s decision to grant permanent custody to the State and to

terminate parental rights must be supported by clear and convincing evidence. In re L.C.,
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2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion

standard, and we will not disturb such a decision on evidentiary grounds “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.” Id.; see also In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-

5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is unreasonable,

arbitrary, or unconscionable. In re S.S. at ¶ 7. Therefore, a trial court’s termination of

parental rights cannot be reversed based on a mere difference of opinion or substitution

of our judgment for that of the lower court.

       {¶ 5} Having identified our standard of review, we turn now to the substantive

issues before us. The standards governing permanent-custody motions are as follows:

              R.C. 2151.414 establishes a two-part test for courts to apply when

       determining a motion for permanent custody to a public services agency.

       The statute requires the court to find, by clear and convincing evidence,

       that: (1) granting permanent custody of the child to the agency is in the best

       interest of the child; and (2) either the child (a) cannot be placed with either

       parent within a reasonable period of time or should not be placed with either

       parent if any one of the factors in R.C. 2151.414(E) are present; (b) is

       abandoned; (c) is orphaned and no relatives are able to take permanent

       custody of the child; or (d) has been in the temporary custody of one or

       more public or private children services agencies for twelve or more months

       of a consecutive twenty-two month period. * * *

              R.C. 2151.414(D) directs the trial court to consider all relevant factors
                                                                                         -4-


      when determining the best interest of the child, including but not limited to:

      (1) the interaction and interrelationship of the child with the child's parents,

      relatives, foster parents and any other person who may significantly affect

      the child; (2) the wishes of the child; (3) 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; (4) the

      child’s need for a legally secure permanent placement and whether that

      type of placement can be achieved without a grant of permanent custody to

      the agency; and (5) whether any of the factors in R.C. 2151.414(E)(7)

      through (11) are applicable.

In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14-15.

      {¶ 6} Here the trial court made the findings required to award MCCS permanent

custody. Specifically, it found by clear and convincing evidence that J.M. could not be

placed with either parent within a reasonable time. It also found that awarding permanent

custody to MCCS was in the child’s best interest.

      {¶ 7} With regard to the first of the foregoing two findings, R.C. 2151.414(E)

identifies 16 criteria to consider when determining whether a child cannot or should not

be placed with either parent within a reasonable time. Here the trial court found that four

of them applied. In particular, it found: (1) a failure continually and repeatedly to

substantially remedy the conditions causing the child to be placed outside the child’s

home (R.C. 2151.414(E)(1)); (2) chemical dependency so severe that it made a parent

unable to provide an adequate permanent home for the child at the present time and, as
                                                                                             -5-


anticipated, within one year after the hearing (R.C. 2151.414(E)(2)); (3) 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 (R.C. 2151.414(E)(4)); and (4) unwillingness for any reason

to provide basic necessities for the child (R.C. 2151.414(E)(14)). The trial court made

detailed findings on each of the foregoing issues.

       {¶ 8} With regard to the best-interest issue, the trial court addressed the pertinent

factors under R.C. 2151.414(D)(1) and made specific findings regarding: (1) J.M.’s

interaction and interrelationship with parents, siblings, relatives, foster caregivers, and

others; (2) the child’s wishes, if applicable; (3) the child’s custodial history; and (4) the

child’s need for a legally secure placement and whether that type of placement could be

achieved without granting permanent custody to MCCS.

       {¶ 9} On appeal, Mother first challenges the trial court’s analysis of the statutory

considerations as to whether a child cannot or should not be placed with either parent

within a reasonable time.1 Mother argues that several of those considerations “weigh” in

her favor insofar as they are inapplicable. We note, however, that if any one or more of

the R.C. 2151.414(E) findings exists, a trial 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



1 We note that Father has not appealed from the trial court’s award of permanent custody
to MCCS and its termination of his parental rights. At the time of the permanent-custody
hearing, Father, a registered sex offender, was incarcerated and awaiting trial on federal
charges involving distribution of heroin and fentanyl. (Tr. 41, 58-59). Those charges
stemmed from the drug raid on paternal grandmother’s house. Father did not cooperate
with MCCS and made no effort to satisfy any case-plan objectives. (Id. at 57-59). For
purposes of our analysis herein, we will focus on the trial court’s findings as they relate to
Mother and her appeal.
                                                                                         -6-

parent.” In re B.R., 2d Dist. Montgomery No. 28182, 2019-Ohio-644, ¶ 29. Thus, the R.C.

2151.414(E) findings found to exist are not considerations that we balance or “weigh”

against other criteria that are nonexistent. The issue before us is whether the record

contains clear and convincing evidence that at least one of those findings exists.

       {¶ 10} In the remainder of her argument about the R.C. 2151.414(E) findings,

Mother cites her progress on her case-plan objectives. Mother notes that she had

satisfied several of those objectives prior to the hearing. Specifically, she notes that she

had completed a mental-health assessment, completed a substance-abuse treatment

program, obtained housing, visited with J.M. regularly, and completed parenting classes.

       {¶ 11} In addressing Mother’s failure to remedy the conditions causing J.M. to be

removed from her, however, the trial court noted that a primary concern has been

substance abuse. That aspect of Mother’s case plan required her to complete a

substance-abuse treatment program, including aftercare, and to follow recommendations.

On that issue, the trial court noted that Mother had tested positive for amphetamine,

methamphetamine, and cocaine as recently as August 11, 2017, which was less than four

months before the permanent-custody hearing. The trial court made the following findings

with citations to the record:

              Through Day-Mont, Mother was referred to the Sojourner program

       for her substance abuse issues, which is MCCS’s primary concern. (Tr. 51,

       65). MCCS’s concern stems from Mother’s long history of substance abuse,

       Mother’s positive drug screen as recently as August 2017, and the child

       being born with drugs in her system. (Tr. 52, 65).

              In September 2015, before her involvement in Sojourner, Mother
                                                                                  -7-


tested positive for morphine and buprenorphine. (Tr. 72). The Court does

note that in January 2017, May 2016, November 2015, and July 2015,

Mother tested negative for illegal drugs. (Tr. 71). To [MCCS supervisor] Ms.

Williams’ knowledge, Mother never drug tested positive between

September 2015 through August 2017. (Tr. 73-74). But Ms. Williams also

notes that during that time frame there were large gaps in her treatment

when Mother was not participating in any therapy. (Tr. 74). Ms. Williams

also notes that during this time frame MCCS received reports that Mother

was using drugs. (Tr. 74). MCCS remains concerned with Mother’s drug

and alcohol use because on August 11, 2017, Mother tested positive for

amphetamine, methamphetamine, and cocaine, yet denies any drug use.

(Tr. 53, 71).

       While Mother followed through with the drug and alcohol assessment

at Day-Mont, as well as with services at Day-Mont and received a certificate

of completion from Day-Mont, she failed to complete aftercare. (Tr. 52, 65,

70). Ms. Williams has discussed monthly with Mother the need for her to

complete aftercare. (Tr. 72). Mother always told Ms. Williams that she was

going to get started on aftercare, but she never did. (Tr. 73). Mother’s

aftercare goal, which she developed herself with her therapist, was to obtain

and maintain sobriety in order to reunify with the child and parent the child.

(Tr. 73). The aftercare plan was to participate in case management five

times a week; participate in individual counseling five to eight times a month;

participate in group counseling nine to eleven times a month; and to
                                                                                      -8-


       complete an annual diagnostic. (Tr. 73).

              Mother’s case plan objectives as to substance abuse [are] not

       complete.

(October 24, 2018 Decision and Judgment at 4).

       {¶ 12} The trial court also noted that a significant case-plan objective was for

Mother to obtain stable housing and employment. On those issues, the trial court made

the following findings:

              Both the housing and income objectives were discussed with Mother

       monthly. (Tr. 55). MCCS made referrals for both housing and income. (Tr.

       55). Mother was referred to the Job Center. (Tr. 55). In addition, the

       Sojourner program assists individuals in obtaining both housing and

       income. (Tr. 55).

              Mother obtained housing in April 2016, and has maintained that

       housing for over eighteen months. (Tr. 55, 70). However, Mother does not

       have bedding or other supplies for the child. (Tr. 56). MCCS considers

       Mother’s home appropriate for the child. (Tr. 56). Mother’s case plan

       objective to obtain and maintain housing is complete. (Tr. 56).

              MCCS worked with Mother to help her follow through in finding

       employment. (Tr. 55). Mother has had several jobs throughout this case,

       however she does not currently have any verifiable income at this time. (Tr.

       55, 56, 70). Mother’s last verifiable income was in March/April 2016. (Tr.

       57). Historically, Mother has not been able to maintain employment for more

       than two to three months at a time. (Tr. 56). There is no indication that
                                                                                         -9-


       Mother is unable or unwilling to work. (Tr. 70). Mother’s case plan objectives

       to obtain and maintain income [are] not complete.

(October 24, 2018 Decision and Judgment at 4).

       {¶ 13} In light of Mother’s long-standing substance-abuse problem, her failure to

follow through with substance-abuse aftercare, her recent positive drug tests while

denying any drug use, and her failure to maintain stable employment with any verifiable

income, we find clear and convincing evidence to support the trial court’s determination

that Mother has failed continually and repeatedly to substantially remedy the conditions

causing the child to be placed outside the child’s home. A primary concern when the trial

court adjudicated J.M. dependent in September 2015 was Mother’s drug use, which

resulted in the child testing positive for heroin at birth. Almost two years later in August

2017, Mother tested positive for amphetamine, methamphetamine, and cocaine. She did

so despite repeated agency efforts to obtain help for her drug problem and despite her

knowledge that MCCS had moved for permanent custody in June 2017. Mother’s income

also was a concern for the agency. She had no income when MCCS became involved

with her in 2015, and she still had no verifiable income at the time of the permanent-

custody hearing in December 2017. (Tr. 55). Under these circumstances, we see no error

in the trial court’s finding under R.C. 2151.414(E)(1). That finding itself is sufficient to

uphold the trial court’s determination that J.M. cannot be placed with Mother within a

reasonable time.

       {¶ 14} The only remaining issue is whether awarding permanent custody to MCCS

was in J.M.’s best interest. On that issue, Mother challenges the trial court’s weighing of

the statutory best-interest factors and argues that legal custody should have been
                                                                                           -10-


awarded to J.M.’s paternal great grandmother.

       {¶ 15} Upon review, we note that the trial court engaged in a detailed discussion

of the pertinent best-interest factors under R.C. 2151.414(D). With regard to the first

factor, J.M.’s interaction and interrelationship with others, the trial court found that the

child was happy and healthy in foster care. The trial court also noted that it was a foster-

to-adopt placement. On the other hand, the trial court recognized Mother’s bond with the

child as well as the paternal great grandmother’s relationship with the child. The trial court

concluded that this factor weighed neither for nor against permanent custody to MCCS.

The trial court likewise found that the next factor, the child’s wishes, weighed neither for

nor against permanent custody because J.M. was too young to express her wishes.

       {¶ 16} The trial court’s best-interest determination turned on the next two factors:

the child’s custodial history, and the child’s need for a legally secure placement and

whether that type of placement could be achieved without granting permanent custody to

MCCS. With regard to custodial history, the trial court detailed the history of the case,

including J.M.’s dependency adjudication after birth, temporary custody to paternal

grandmother with two extensions, the drug raid on paternal grandmother’s house,

temporary custody to MCCS, Mother’s recent drug use, and the child’s failure to return to

the care of either parent since the initial removal. The trial court concluded that this factor

weighed in favor of permanent custody to MCCS.

       {¶ 17} With regard to J.M.’s need for a legally secure placement and the availability

of options other than permanent custody to MCCS, the trial court observed that the child

had spent “a good portion of her life out of the custody of either parent.” (October 24,

2018 Decision and Judgment at 8). The trial court found the child to be in “desperate need
                                                                                            -11-

of a legally secure, permanent placement.” (Id.). The trial court left no stone unturned in

addressing and rejecting placement options other than permanent custody to MCCS. It

cited reasons to believe reunification with Mother or Father was not possible in the

foreseeable future, including Mother’s drug abuse and lack of income and Father’s

pending felony charges and failure to follow through on any of his case-plan objectives.

(Id.). The trial court detailed MCCS’s unsuccessful efforts to find a suitable relative to

provide long-term care for J.M. (Id. at 8-9).

       {¶ 18} The only relative Mother mentions on appeal is J.M.’s paternal great

grandmother. The trial court noted, however, that the paternal great grandmother resided

in one-bedroom apartment that MCCS found to be too small. Although the great

grandmother expressed a willingness to move, her relocation efforts had been

unsuccessful at the time of the hearing.2 No home study had been conducted on the

great grandmother’s one-bedroom apartment. In addition, the great grandmother had

“severe, persistent medical issues” that caused MCCS concern. (Id. at 9). The great

grandmother also testified that she is disabled and has no income other than a disability

check. (Tr. 97). Despite the great grandmother’s interest in obtaining custody of J.M., the

trial court was not required to favor placement with a relative if, after considering all of the

evidence, it found the child’s best interest served by an award of permanent custody to



2  This court has upheld a trial court’s consideration of the size of a prospective
custodian’s residence. The issue was addressed in In re Z.W., 2d Dist. Montgomery No.
23657, 2010-Ohio-1619, as follows: “In her brief, [Mother] takes umbrage at the
significance the trial court placed on the size of [maternal grandmother’s] apartment,
noting that a young child and the child’s custodian sharing a one-bedroom apartment
‘happens throughout America all the time.’ In determining Z.W.’s best interests, the trial
court was free to consider the respective advantages and disadvantages of the alternative
proposed living arrangements, including size.” Id. at ¶ 33.
                                                                                  -12-

MCCS. In re E.S., 2d Dist. Clark No. 2016-CA-36, 2017-Ohio-219, ¶ 59; In re Z.W., 2d

Dist. Montgomery No. 23657, 2010-Ohio-1619, ¶ 29. The trial court made such a

determination here, finding by clear and convincing evidence that it was in the best

interest of J.M. to award permanent custody to MCCS, which had a permanency plan of

adoption for the child. We see no error in this determination.

       {¶ 19} Based on the reasoning set forth above, we overrule Mother’s assignment

of error and affirm the judgment of the Montgomery County Common Pleas Court.

                                     .............



WELBAUM, P.J. and DONOVAN, J., concur.


Copies sent to:

Mathias H. Heck, Jr.
Sarah E. Hutnik
Lucas W. Wilder
Kyle Lennen
Steven Abshire, GAL
Hon. Anthony Capizzi
