[Cite as In re J.T., 2019-Ohio-4520.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY



IN RE:
                                                             CASE NO. 14-19-15
        J.T.,

ADJUDGED DEPENDENT CHILD.
                                                             OPINION
[LAUREN G. - APPELLANT]


IN RE:
                                                             CASE NO. 14-19-16
        B.T.,

ADJUDGED ABUSED, DEPENDENT
CHILD.
                                                             OPINION
[LAUREN G. - APPELLANT]



                  Appeals from Union County Common Pleas Court
                                 Juvenile Division
                      Trial Court Nos. 21730010 and 21730047

                                        Judgments Affirmed

                           Date of Decision:     November 4, 2019




APPEARANCES:

        Barbara A. Luke for Appellant-Mother
Case Nos. 14-19-15, 14-19-16



SHAW, J.

         {¶1} Mother-appellant, Lauren G. (“Mother”), appeals the March 22, 2019

judgments of the Union County Court of Common Pleas, Juvenile Division,

granting the motion for legal custody of her children, J.T. and B.T., filed by third-

party intervener-appellee, maternal uncle, Lucas G. (“Uncle”), and overruling

Mother’s motion for custody. On appeal, Mother claims that the trial court’s

decision is against the manifest weight of the evidence and not in the best interest

of the children. Mother also claims that the trial court abused its discretion when it

failed to follow the recommendations of some of the witnesses at the evidentiary

hearing.

         {¶2} On March 16, 2017, the Union County Department of Job and Family

Services (hereinafter the “Agency”) filed a complaint alleging six-month old J.T. to

be a neglected and dependent child.                    See R.C. 2151.03; R.C. 2151.04.                   The

complaint alleged that Mother was incarcerated as a consequence of her chronic,

illicit drug use and that Mother had failed to provide housing for J.T.1 After an

initial hearing, J.T. was placed in the care of Uncle under the Agency’s protective

supervision, with Mother having supervised parenting time. The Agency developed

a case plan for Mother with the goal of reunification.



1
 The record identifies Dillon T. as J.T.’s biological father and indicates Father was incarcerated prior to the
complaint being file. We note that Father did not appeal the underlying custody order at issue.

                                                     -2-
Case Nos. 14-19-15, 14-19-16


           {¶3} On June 5, 2017, the magistrate conducted an adjudicatory hearing and

found J.T. to be a dependent child under R.C. 2151.04(A)-(C). The magistrate

further found that the Agency failed to substantiate its claim of neglect and

dismissed the complaint with regard to that claim. The trial court subsequently

adopted and approved the magistrate’s decision on J.T.’s adjudication.

           {¶4} On July 11, 2017, the magistrate conducted a dispositional hearing and

determined that placing J.T. in the temporary custody of Uncle is in his best interest.

The magistrate further recommended that the Agency continue its protective

supervision with Mother having supervised parenting time at the Agency. The trial

court subsequently adopted and approved the magistrate’s decision on J.T.’s

disposition.

           {¶5} On December 27, 2017, B.T. was born to Mother and Father.2 The

Agency sought an emergency ex-parte order of temporary custody of B.T. based

upon the ongoing case with J.T. Specifically, the Agency alleged that Mother had

been out of contact with the Agency from June to September 2017, despite being

subject to court-ordered involvement. Mother also had admitted to the Agency that

she was using heroin on daily basis during that timeframe. The Agency further

alleged that Mother had been living with Father, who also has a history of substance

abuse, at the time of B.T.’s birth. The Agency explained that B.T. was initially



2
    Dillon T. was legally established to be the biological father of B.T.

                                                        -3-
Case Nos. 14-19-15, 14-19-16


released to Mother’s custody after birth upon the agreement that a safety plan would

be put into effect under which either paternal grandmother or paternal great-

grandmother would supervise Mother’s and Father’s interactions with B.T. at all

times. However, upon the Agency’s inspection of the home it was discovered that

neither family member was present nor was there a crib or appropriate place for the

newborn to sleep. The magistrate subsequently granted the ex-parte order. B.T.

was placed in the temporary custody of Agency, residing in Uncle’s home with J.T.

       {¶6} Shortly thereafter, the Agency filed a complaint alleging B.T. to be a

dependent child. The complaint was later amended to include allegations that B.T.

was an abused child pursuant to R.C. 2151.031(B),(D). The allegations of abuse

were premised upon two 9-1-1 calls reporting incidents of domestic violence

between Mother and Father in December of 2017, and the laboratory results from

an analysis of B.T.’s umbilical cord tissue which tested positive for cocaine,

benzoylecgonine, opiates and morphine.

       {¶7} On March 1, 2018, the magistrate held a hearing and adjudicated B.T.

as an abused and dependent child. See R.C. 2151.031(D); R.C. 2151.04(C),(D).

The trial court subsequently approved and adopted the magistrate’s decision on the

adjudication of B.T. The following day, the magistrate conducted a dispositional

hearing concerning B.T. In a decision issued August 20, 2018, the magistrate

determined it in B.T.’s best interest to be placed in Uncle’s temporary custody and


                                        -4-
Case Nos. 14-19-15, 14-19-16


continued Uncle’s temporary custody of J.T. The magistrate also recommended that

B.T. be placed under the protective supervision of the Agency and that the Agency

continue its protective supervision of J.T. for six months, with Mother having

supervised parenting time with B.T. and J.T. The trial court subsequently adopted

and approved the magistrate’s decision.

        {¶8} On August 31, 2018, the Agency filed a motion to modify disposition.

In this motion, the Agency cited a concern with “disagreement and turmoil” between

Mother and Uncle over the visitation between the minor children and the parents.

(Doc. No. 169).3 The Agency stated that it was met with resistance from one or

more of the parties in attempting to facilitate the reunification of the children with

Mother.

        {¶9} On September 4, 2018, the magistrate issued a revised parenting time

schedule under which Mother was granted incrementally expanded unsupervised

parenting time with the minor children and increased overnight visits.

        {¶10} On October 19, 2018, the magistrate conducted a hearing on Uncle’s

and Mother’s respective motions for custody of J.T. and B.T. The trial court also

considered the Agency’s motion to modify disposition, which it orally amended at

the hearing to request that temporary custody be granted to Mother under its

protective supervision. The magistrate heard the testimony of several witnesses


3
 When making reference to the record, we will use the enumeration of the docket in case number 21730010
assigned to J.T.

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Case Nos. 14-19-15, 14-19-16


including, Mother, Father, Uncle, Uncle’s Wife, and several individuals involved in

the Agency’s case.

       {¶11} On October 23, 2018, the magistrate issued a decision finding it in the

children’s best interest to grant Uncle’s motion for legal custody and to terminate

the Agency’s involvement. The magistrate recommended that Mother receive local

rule parenting time allocated to the non-residential parent, with the exception of

Wednesday parenting time, which the magistrate recommended should be reserved

for Father’s supervised parenting time.        Under the magistrate’s decision both

Mother and Father were to be considered obligors for the children’s health insurance

and child support.       Mother subsequently filed objections to the magistrate’s

decision, which were overruled by the trial court.

       {¶12} On March 22, 2019, the trial court issued a judgment entries granting

Uncle’s motion for legal custody and implementing orders consistent with the

magistrate’s decision.

       {¶13} It is from these judgment entries that Mother now appeals, asserting

the following assignments of error for our review.

                         ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       DENYING APPELLANT-MOTHER’S MOTION FOR LEGAL
       CUSTODY OF J.T. AND B.T. AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AND NOT IN THE BEST
       INTEREST OF THE CHILDREN.


                                         -6-
Case Nos. 14-19-15, 14-19-16


                       ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ABUSED ITS DISCRETION IN
       GRANTING [UNCLE]’S MOTION FOR LEGAL CUSTODY
       OF J.T. AND B.T. AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE AND NOT IN THE CHILDREN’S BEST
       INTERESTS.

                       ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ABUSED ITS DISCRETION BY
       FAILING TO FOLLOW THE RECOMMENDATIONS OF
       EACH PROFESSIONAL IN THE CASE, WHICH IS AGAINST
       PUBLIC POLICY, AGAINST THE MANIFEST WEIGHT OF
       THE EVIDENCE, AND NOT IN THE CHILDREN’S BEST
       INTERESTS.

       {¶14} For ease of discussion, we elect to address the assignments of error

together.

                   First, Second, and Third Assignments of Error

       {¶15} In these assignments of error, Mother challenges the trial court’s

decision to grant Uncle’s motion for legal custody of J.T. and B.T. Specifically,

Mother maintains that the trial court’s decision is against the manifest weight of the

evidence and not in the children’s best interest.

                                   Legal Standard

       {¶16} Pursuant to R.C. 2151.353(A)(3), if the court adjudicates a child

abused, neglected, or dependent, then it may grant legal custody to a parent or

another person who requests custody. “Legal custody vests in the custodian the

physical care and control of the child while residual parental rights and

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Case Nos. 14-19-15, 14-19-16


responsibilities remain intact,” and “[u]nlike permanent custody, granting legal

custody does not terminate the parent-child relationship.” In re M.M., 12th Dist.

Fayette No. CA2010-12-034, 2011-Ohio-3913, ¶ 7. The statutory scheme regarding

an award of legal custody does not include an independent test or set of criteria, but

Ohio courts agree that the juvenile court must base its decision to award legal

custody on the best interest of the children. In re B.B., 9th Dist. Lorain No.

15CA010880, 2016-Ohio-7994, ¶ 18; In re M.A., 12th Dist. Butler No. CA2011-02-

030, 2012-Ohio-545, ¶ 15. A court may therefore consider the relevant best interest

factors set forth in either R.C. 3109.04(F) or R.C. 2151.414(D) as guidance in

determining the best interest of the child. In re K.S., 12th Dist. Warren Nos.

CA2019-01-009 and CA2019-02-015, 2019-Ohio-2384, ¶ 37; In re H.S., 9th Dist.

Summit No. 29011, 2019-Ohio-1878, ¶ 13; In re A.B., 6th Dist. Lucas No. L-18-

1136, 2018-Ohio-4206, ¶ 11.

                                Standard of Review

       {¶17} Unlike in a permanent custody proceeding, where an agency’s burden

is by clear and convincing evidence, the standard in legal custody proceedings is a

preponderance of the evidence. In re S.D., 5th Dist. Stark Nos. 2013CA0081,

2013CA0082, 2013-Ohio-5752, ¶ 32; In re A.C., 12th Dist. No. CA2006-12-105,

2007-Ohio-3350, ¶ 14. “A trial court has broad discretion in proceedings involving

the care and custody of children.” In re Mullen, 129 Ohio St.3d 417, 2011-Ohio-


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Case Nos. 14-19-15, 14-19-16


3361, ¶ 14. Consequently, we review a trial court’s decision to award a party legal

custody of an abused, neglected, or dependent child for an abuse of discretion, and

we afford its decision “the utmost deference.” In re E.W., 4th Dist. Washington Nos.

10CA18, 10CA19, and 10CA20, 2011-Ohio-2123, ¶ 18, citing Miller v. Miller, 37

Ohio St.3d 71, 74 (1988). “The phrase ‘abuse of discretion’ is one of art, connoting

judgment exercised by a court which neither comports with reason nor the record.”

In re K.Q., 11th Dist. Ashtabula No. 2017-A-0060, 2018-Ohio-906, ¶ 14.

       {¶18} Moreover, in considering whether the juvenile court’s judgment is

against the manifest weight of the evidence, this Court “weighs the evidence and all

reasonable inferences, considers the credibility of witnesses and determines whether

in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and

created such a manifest miscarriage of justice that the [judgment] must be reversed

and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman,

132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this

Court “must always be mindful of the presumption in favor of the finder of fact.”

Id. at ¶ 21.

                         Evidence Adduced at the Hearing

       {¶19} The testimony from multiple witnesses at the evidentiary hearing

established that both Mother and Father had chronic substance abuse problems

which resulted in J.T. being placed into Uncle’s care in February of 2017 at


                                         -9-
Case Nos. 14-19-15, 14-19-16


approximately six-months old. Mother admittedly did not actively participate in the

Agency’s case plan concerning J.T. for the first ten months and until after she

became clean and sober in August of 2017. The testimony of several individuals,

including the Agency’s representative and the children’s Court Appointed Special

Advocate (“CASA”), demonstrated that Mother began to diligently work towards

meeting the objectives outlined in the case plan in October of 2017.

       {¶20} Amber Conley, the Agency’s ongoing supervisor, testified that Mother

had completed all aspects of the case plan, had thirty-five negative drug screens

since the beginning of 2018, and continued to see a substance abuse and domestic

violence counselor. The testimony of other individuals, including the CASA,

echoed applause for Mother’s efforts to be reunified with the children, which

included maintaining consistent employment, stable housing, paying bills, and

exercising parenting time with the children. It is clear that Mother’s progress over

the eight months preceding the evidentiary hearing formed the principal basis for

these witnesses expressing their beliefs that Mother’s motion for custody of J.T. and

B.T. should be granted.

       {¶21} However, Uncle also testified expressing concern with Mother’s past

drug use and skepticism regarding Mother’s ability to be drug free. Uncle remained

troubled by Mother’s continued relationship with Father, which in the past involved

chronic substance abuse and alleged incidents of domestic violence. Uncle feared


                                        -10-
Case Nos. 14-19-15, 14-19-16


that Mother would be unable to protect the children if she was granted custody.

Moreover, the record established that Father failed to make substantive efforts to

work the Agency’s case plan, failed to pay child support, did not produce negative

drug screens, and was arrested twice since the case with J.T. began.4 Mother

maintained that she and Father were no longer a “couple”—despite having contact

with Father “twice a week at least.” (Tr. at 178, 185). Mother was also pregnant

with her third child at the time of the evidentiary hearing whom she claimed to be

the child of Father. Even though Ms. Conley, the Agency’s representative, testified

that Mother should receive temporary custody of the children based on her progress,

Ms. Conley noted that the Agency would still require Father to have supervised

parenting time due to his lack of compliance with the case plan.

         {¶22} Mother stated that the last time she and Father were in a physical

altercation was in the beginning of 2018. Karen Bresky, a former CASA assigned

to the case, testified that she noticed Mother had a “pretty severely injured face and

eye” in February of 2018. (Tr. at 52). Mother claimed that she was in a car accident

and the airbag deployed, causing injury to her face. Ms. Bresky stated that she

believed Mother was “dishonest about the airbag incident.” (Id. at 57). However,

at the evidentiary hearing over six months later, Mother attempted to rely on her


4
  Father testified that he had stopped consuming drugs since he attended a rehab in June of 2018 and was
receiving the vivitrol shot and counseling for drug and alcohol abuse. However, the Agency’s caseworker
testified that Father tested positive for THC approximately a month before the evidentiary hearing and Mother
acknowledged that Father continued to use marijuana.

                                                   -11-
Case Nos. 14-19-15, 14-19-16


testimony from a prior hearing during which she stated that her injuries were caused

by a car accident, and when pressed on the issue chose not answer any further

questions regarding the incident and instead invoked her Fifth Amendment right

against self-incrimination.

       {¶23} The evidence at the hearing also demonstrated that Mother visited a

known drug house in January of 2018 with Father’s mother (paternal grandmother)

while the Agency’s cases were ongoing. Mother admitted to going to the residence

with Father’s mother, but claimed she was simply there to see friends and did not

consume any drugs. (Tr. at 168). The Agency’s caseworker verified that Mother

had a negative drug screen around this time. Nevertheless when asked about the

incident, Father admitted that his mother (paternal grandmother) is “an addict” and

speculated that she was at the house with Mother to purchase illegal drugs. (Tr. at

252). Although she downplayed her relationship with Father at the evidentiary

hearing, Mother admitted she had “latched on” to Father and his family “whether

it’s been healthy or unhealthy” and claimed that she has made progress in attempting

to reduce that reliance. (Tr. at 187).

       {¶24} The testimony from multiple witnesses at the evidentiary hearing,

including the Agency’s representative, also established that J.T. and B.T. were well-

adjusted to Uncle’s home and had a close bond with Uncle, his wife, and their

children. Furthermore, even though the Agency and other individuals involved in


                                         -12-
Case Nos. 14-19-15, 14-19-16


the case advocated for Mother to be granted custody of the children, they all agreed

that it is in the children’s best interest for Uncle to have visitation and remain a

constant in their lives.

       {¶25} The evidence also demonstrated that Uncle followed the court-ordered

schedule giving Mother expansive parenting time with the children despite his

acrimonious relationship with Mother. Even though Mother alleged that Uncle took

the children out of state on Mother’s scheduled weekend for his wedding in

contravention of the court’s order, the record reveals that there was contradicting

testimony at the evidentiary hearing as to whether Mother was apprised of this event

well in advance of her receiving expanded visitation and whether Uncle offered to

compensate Mother with additional parenting time for accommodating them.

       {¶26} Mother also claimed that Uncle unilaterally withheld the children from

her for a short period of time. However, the record indicates that Uncle ceased

facilitating Mother’s visitation upon the advice from counsel because there was no

court order establishing the parties’ parenting times/custody. The record indicates

that Uncle complied once the court issued the order. Specifically, Ms. Conley, the

Agency’s representative, testified that Uncle had “done a nice job” following the

court’s “aggressive visitation, which I know he wasn’t in favor of.” (Tr. at 124).

Accordingly, the evidence at the hearing did not substantiate Mother’s claims that

Uncle willfully interfered with her court-ordered parenting time.


                                       -13-
Case Nos. 14-19-15, 14-19-16




                                    Discussion

       {¶27} In rendering a decision, the magistrate and the trial court applied the

statutory best interest factors in R.C. 3109.04(F) which provides that:

       (F)(1) In determining the best interest of a child pursuant to this
       section, whether on an original decree allocating parental rights
       and responsibilities for the care of children or a modification of a
       decree allocating those rights and responsibilities, the court shall
       consider all relevant factors, including, but not limited to:

       (a) The wishes of the child’s parents regarding the child's care;

       (b) If the court has interviewed the child in chambers pursuant
       to division (B) of this section regarding the child’s wishes and
       concerns as to the allocation of parental rights and responsibilities
       concerning the child, the wishes and concerns of the child, as
       expressed to the court;

       (c) The child’s interaction and interrelationship with the child’s
       parents, siblings, and any other person who may significantly
       affect the child's best interest;

       (d) The child’s adjustment to the child’s home, school, and
       community;

       (e) The mental and physical health of all persons involved in the
       situation;

       (f) The parent more likely to honor and facilitate court-
       approved parenting time rights or visitation and companionship
       rights;

       (g) Whether either parent has failed to make all child support
       payments, including all arrearages, that are required of that
       parent pursuant to a child support order under which that parent
       is an obligor;

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Case Nos. 14-19-15, 14-19-16



       (h) Whether either parent or any member of the household of
       either parent previously has been convicted of or pleaded guilty
       to any criminal offense involving any act that resulted in a child
       being an abused child or a neglected child; whether either parent,
       in a case in which a child has been adjudicated an abused child or
       a neglected child, previously has been determined to be the
       perpetrator of the abusive or neglectful act that is the basis of an
       adjudication; whether either parent or any member of the
       household of either parent previously has been convicted of or
       pleaded guilty to a violation of section 2919.25 of the Revised Code
       or a sexually oriented offense involving a victim who at the time
       of the commission of the offense was a member of the family or
       household that is the subject of the current proceeding; whether
       either parent or any member of the household of either parent
       previously has been convicted of or pleaded guilty to any offense
       involving a victim who at the time of the commission of the offense
       was a member of the family or household that is the subject of the
       current proceeding and caused physical harm to the victim in the
       commission of the offense; and whether there is reason to believe
       that either parent has acted in a manner resulting in a child being
       an abused child or a neglected child;

       (i) Whether the residential parent or one of the parents subject
       to a shared parenting decree has continuously and willfully denied
       the other parent’s right to parenting time in accordance with an
       order of the court;

       (j) Whether either parent has established a residence, or is
       planning to establish a residence, outside this state.

R.C. 3109.04(F)(1).

       {¶28} On appeal, Mother claims that the trial court abused its discretion in

overruling her objections to the magistrate’s decision. Specifically, Mother asserts

that the magistrate failed to properly apply the best interest factors and argues that

the manifest weight of the evidence supported granting Mother’s motion for

                                        -15-
Case Nos. 14-19-15, 14-19-16


custody. Mother bases her arguments on the fact that the Agency, the CASA, and

the Guardian ad litem all testified in support of Mother’s motion for custody.

Notably, we disagree with Mother’s characterization on appeal that the magistrate

and trial court failed to give adequate consideration to the testimony of these

witnesses. Nevertheless, we recognize that the undisputed evidence at the hearing

established that Mother made significant progress towards reunification in the eight

months preceding the evidentiary hearing by achieving all the objectives in the

Agency’s case plans, remaining clean and sober, and maintaining employment and

appropriate housing.

       {¶29} However, in stating her position on appeal, Mother overlooks the

evidence establishing that she continued to foster a close relationship with Father,

who had not made substantial efforts to work the Agency’s case plans, had a history

of physical violence with Mother, and failed to produce negative drug screens. See

R.C. 3109.04(F)(1)(e). The record supports the suspicion that Mother was not

honest about the nature of her relationship with Father at the evidentiary hearing;

specifically, Mother’s claims that she was no longer in a relationship with Father

and only had limited contact with him, while being pregnant with his child at the

time of the hearing. It is apparent from the record that the magistrate was concerned

that continuing this relationship with Father could jeopardize Mother’s progress—

a fact that Mother herself appeared to recognize by attempting to diminish the extent


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Case Nos. 14-19-15, 14-19-16


to which Father remained in her life. Notably, all the principal parties in this case

testified including Mother, Father, Uncle, and Uncle’s Wife. As a result, the

credibility determination of Mother’s testimony in this regard was well within the

province of the magistrate and trial court as the triers of fact.

       {¶30} On the other hand, the undisputed evidence also established that J.T.

and B.T. were extremely well-adjusted to Uncle’s home and had closely bonded

with the family members in Uncle’s household. See R.C. 3109.04(F)(1)(d),(c). As

previously mentioned, J.T. was placed with Uncle at six-months old and B.T. was

placed with him as a newborn. Moreover, despite his distrust of Mother and his

beliefs about her ability to remain clean and sober, Uncle demonstrated his

willingness to abide by the court-ordered parenting time schedule.             See R.C.

3109.04(F)(1)(f).

       {¶31} In deciding whether to grant Mother’s motion for legal custody, the

trial court also had to consider whether it was the appropriate time to uproot the

children from the only home they have known to give Mother a chance to parent

fulltime. While Mother had indeed demonstrated a commitment to move away from

the lifestyle that caused both the children to be adjudicated dependent and B.T. to

be adjudicated an abused child, the assessment of Mother’s ability to continue on

this path is nevertheless a crucial consideration for the court.              See R.C.

3109.04(F)(1)(e),(h). It is apparent that in this case the trial court did not find eight


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Case Nos. 14-19-15, 14-19-16


months to be a long enough period of time to substantiate Mother’s claims that a

change in custody from Uncle to Mother is in the children’s best interest. See R.C.

3109.04(F)(1)(d),(c). Based on the foregoing, we cannot find that the trial court

exercised judgment which neither comports with reason nor the record so as to

constitute an abuse of discretion. To the contrary, the record demonstrates that the

magistrate and trial court considered the appropriate factors in determining that

granting Uncle’s motion for legal custody is in the children’s best interest.

Affording deference to the findings of the magistrate and the trial court regarding

the witnesses’ credibility, we find ample evidence was presented to support the trial

court’s determinations that granting custody of the children to Mother was not in

the children’s best interest at this time.5 Accordingly, we overrule the assignments

of error.

         {¶32} For all these reasons, the assignments of error are overruled and the

judgments of the trial court are affirmed.

                                                                                 Judgments Affirmed

ZIMMERMAN, P.J. and PRESTON, J., concur.

/jlr




5
  Our conclusion is not intended to diminish the fact demonstrated in the record that Mother has made
significant progress in working towards reunification with her children, which if continued, could eventually
alleviate the trial court’s concern regarding Mother’s current involvement with Father.

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