       [Cite as In re K.W., 2019-Ohio-2936.]




                    IN THE COURT OF APPEALS
                FIRST APPELLATE DISTRICT OF OHIO
                     HAMILTON COUNTY, OHIO




IN RE: W. CHILDREN.                            :   APPEAL NOS. C-190245
                                                               C-190246
                                               :   TRIAL NO. F07-1763Z

                                               :      O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 19, 2019



Phyllis Schiff, for Appellant Mother,

Cynthia Daugherty, In re Williams Attorney, for Appellants K.W. and K.W.,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Raymond T. Faller, Hamilton County Public Defender, and Amanda Robinson,
Assistant Public Defender, Appellee Guardian ad Litem for K.W. and K.W.
                      OHIO FIRST DISTRICT COURT OF APPEALS


MOCK, Presiding Judge.


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

rights with respect to her two youngest children, K.W.1, currently nine years old, and

K.W.2, currently six years old. The children, through their In re Williams attorney,

also appeal the trial court’s judgment granting permanent custody to the Hamilton

County Department of Job and Family Services (“HCJFS”).            For the following

reasons, we affirm.

       {¶2}   Mother first had contact with HCJFS in December 2007 when her

three older children were removed from her care. The children were removed from

the home when, on two separate occasions, the children’s daycare provider returned

the children to their home to find that mother was not present and no childcare had

been arranged. The juvenile court adjudicated the three older children dependent,

and granted legal custody of mother’s son to the child’s father, and legal custody of

mother’s two older daughters to paternal grandparents. The court based its decision

on the facts that mother suffered from an untreated mental-health issue, had not

complied with her case-plan services, including urine screens, and had not visited

with the children regularly or attended the most recent court hearings.

       {¶3}   In 2010, mother gave birth to K.W.1 and, three years later, gave birth

to K.W.2. In 2014, mother moved for custody of her two older daughters who were

in the legal custody of their paternal grandparents. The paternal grandparents,

believing that mother was now able to parent appropriately, supported mother’s

motion and the trial court granted legal custody to mother. A year later, the paternal

grandparents moved to regain custody of the two older children based on the

children’s report that mother was staying out all night, calling them names, hitting

them and withholding food from them.

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       {¶4}   In June 2015, HCJFS removed all four children from mother’s care

based on the allegation that mother had stomped and punched K.W.2 causing her

injury. HCJFS investigated, and the two older children admitted that mother had

“stomped, punched and kicked” K.W.2. HCJFS implemented a safety plan, placing

the two older girls with their paternal grandparents and placing K.W.1 and K.W.2

with mother’s former foster parent. Unfortunately, mother’s behavior disrupted the

safety plan for K.W.1 and K.W.2, causing HCJFS to move for interim temporary

custody of all four girls. Mother agreed to interim custody, and the court ordered

that the two older children remain with their paternal grandparents and K.W.1 and

K.W.2 be placed in foster care.

       {¶5}   The juvenile court adjudicated all four children dependent in May

2016, and awarded legal custody of the two older children to paternal grandparents

and ordered K.W.1 and K.W.2 to remain in the temporary custody of HCJFS. The

court ordered mother to participate in supervised visitation, case management,

parenting classes, and toxicology screens and to follow any recommendations from a

diagnostic assessment performed by Family Access to Integrated Recovery (“FAIR”).

       {¶6}   FAIR recommended that mother participate in individual counseling

to work on her impulse control and anger issues.      Mother did not report any

substance-abuse issues at that time.   Mother began individual therapy through

Greater Cincinnati Behavioral Health (“GCB”) but in the December 2015 semi-

annual review, HCJFS reported that mother’s therapist believed mother required

more intensive services than GCB could provide. Mother reported at that time that

she had been diagnosed with depression and bipolar disorder. Mother eventually

stopped attending therapy.



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       {¶7}   In the summer of 2016, mother was convicted of criminal simulation

and the unauthorized use of a motor vehicle. She was sentenced to 11 months of

community control. She was also involved in a domestic-violence incident in 2016

with the father of K.W.2, who was arrested but not convicted because mother refused

to testify against him. K.W.2’s father reported that the domestic dispute was caused

by mother stealing drugs that he had been selling out of mother’s home. HCJFS

reported that mother tested positive for cocaine in the summer of 2016. Mother

admitted to recreational use but reported that she was not addicted.

       {¶8}   In December 2016, mother testified positive for alcohol during a

toxicology screen, and one month later tested positive for cocaine. HCJFS referred

mother to FAIR for another diagnostic assessment. FAIR recommended mother

start outpatient drug treatment as well as resume mental-health treatment. Mother

attended an intake meeting at the Talbert House for substance-abuse and mental-

health treatment, but Talbert House discharged mother in March 2017 because she

had not been participating in services. Around that time mother requested that

HCJFS investigate an aunt and a family friend as possible legal custodians of the

children, but those suggested people were unwilling or unable to care for the

children.

       {¶9}   In April 2017, HCJFS moved for permanent custody of the children,

and reported to the court, at the semiannual review, that K.W.1 and K.W.2 were still

residing in the same foster home, that foster mother participated in therapy with

them and that the children displayed a bond with their foster mother. During this

review, HCJFS also reported that K.W.1 was addressing separation issues in therapy

and had expressed “a fear of going home to mother.”          Further, K.W.1 had an

“episode” at school, which K.W.1 explained was caused by her fear that she was going

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                     OHIO FIRST DISTRICT COURT OF APPEALS



to be returned to her mother’s care. With respect to K.W.2, her therapist testified at

the permanent-custody proceeding that K.W.2 did not discuss her mother at all

during therapy, but indicated that her foster mother “takes good care of her.” Her

therapist then concluded that K.W.2 was “presenting as calmer in the foster care

setting” and that a change of environment, i.e., returning to mother’s care, would not

be in K.W.2’s best interest.

       {¶10} In September 2017, mother began participating in mental-health and

substance-abuse treatment at the Talbert House. In early 2018, coinciding with the

start of the permanent-custody proceeding, mother began supervised visitation with

K.W.1 and K.W.2 at the Family Nurturing Center. During the permanent-custody

proceeding, in April 2018, mother again tested positive for cocaine.            At the

conclusion of the custody proceeding, the juvenile magistrate granted HCJFS’s

motion for permanent custody. The mother and the children each filed objections to

the magistrate’s decision, which the juvenile court overruled.

       {¶11} Mother and the children, through their In re Williams attorney, now

appeal the trial court’s judgment terminating mother’s parental rights and granting

permanent custody of K.W.1 and K.W.2 to HCJFS. Both appeals raise the same

single assignment of error, which we consider together: that the juvenile court erred

by granting permanent custody to HCJFS. We are unpersuaded.

                                   Standard of Review

       {¶12} The termination of parental rights is governed by R.C. 2151.414.

Before a juvenile court may terminate parental rights, it must find that it is in the

child’s best interest to be placed in the permanent custody of the moving agency.

R.C. 2151.414(B)(1) and (D). It must also find one of the four conditions listed in

R.C. 2151.414(B)(1) exists. One of those conditions is that “[t]he child has been in the

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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[.]” R.C. 2151.414(B)(1)(d). The court must find both prongs by clear and

convincing evidence. We will not substitute our judgment for that of the trial court

where there is competent and credible evidence supporting the trial court’s

determination. See, e.g., In re W.W., 1st Dist. Hamilton Nos. C-110363 and C-

110402, 2011-Ohio-4912, ¶ 46; In re A.J.O. and M.N.O., 1st Dist. Hamilton No. C-

180680, 2019-Ohio-975, ¶ 6.

       {¶13} Here, the trial court determined that the condition listed in R.C.

2151.414(B)(1)(d) applied. In order to fulfill that condition, “[t]he child has [to have]

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[.]” A child is considered to have entered the temporary custody of

an agency, for the purposes of R.C. 2151.414(B)(1), on the earlier of the date the child

is adjudicated or the date that is 60 days after the removal of the child from the

home. Here, K.W.1 and K.W.2 were removed from mother’s home on June 9, 2015.

Sixty days after the children’s removal is August 8, 2015. At the time the permanent-

custody motion was filed on April 24, 2017, K.W.1 and K.W.2 had been in the

temporary care of HCJFS for 20 months. Given that there is competent and credible

evidence to support the trial court’s determination that the condition set forth in R.C.

2151.414(B)(1) was met, we turn to the second prong of the test.

                                        Best Interest

       {¶14} In assessing the best interest of a child for purposes of a permanent-

custody determination, a juvenile court must consider all relevant factors, including:

(a) the child’s interaction with parents, siblings, relatives, foster caregivers and out-

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of-home providers, and any other person who may significantly affect the child; (b)

the wishes of the child, 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

a public children services agency for twelve or more months of a consecutive twenty-

two-month period; (d) the child’s need for a legally secure placement and whether

that type of placement can be achieved without a grant of permanent custody; and

(e) whether any of the factors under R.C. 2151.414(E)(7) to (11) apply. See R.C.

2151.414(D)(1)(a)-(e); In re Z.P., 1st Dist. Hamilton Nos. C-160572, C-160584 and C-

160620, 2018-Ohio 6987, ¶ 31.

       {¶15} A review of the record demonstrates that there is ample competent and

credible evidence to support the juvenile court’s determination that a grant of

permanent custody to HCJFS is in the children’s best interest.

       {¶16} R.C. 2151.414(D)(1)(a). Before addressing mother’s relationship

with the children, we note that K.W.1’s father is deceased. K.W.2’s father has a

history of domestic violence with mother, as well as a significant history of other

criminal activity.   K.W.2’s father did not participate in case services offered by

HCJFS and has no bond or relationship with his daughter.

       {¶17} With respect to mother, the record demonstrates that she has a bond

with the children and has visited with the children throughout the pendency of the

case, although not consistently. For example, there was a six-month period where

mother visited the children only once. During HCJFS’s three-year period working

with mother, her time with the children never advanced beyond supervised

visitation. The children are doing well with their foster family and have a bond with

their foster mother, who participates in their therapy. Further, K.W.2’s therapist



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                     OHIO FIRST DISTRICT COURT OF APPEALS



testified that K.W.2 was calmer in the foster placement and that it would not be in

K.W.2’s best interest to change her environment.

       {¶18} R.C. 2151.414(D)(1)(b). The children, through their In re Williams

attorney, indicated that they do not want their relationship with their mother to be

permanently severed but they did not indicate that they wanted to live with mother.

K.W.1 acted out at school because she feared being returned to her mother’s care.

K.W.2’s therapist testified that K.W.2 did not speak of her mother during therapy but

reported that she liked her foster mother.

       {¶19} The children’s guardian ad litem (“GAL”) supported a grant of

permanent custody to HCJFS.          The GAL reported that mother’s “lackluster”

engagement with services, i.e., inconsistent participation in mental-health treatment,

testing positive several times for cocaine, including during the permanent-custody

hearing, as well as being convicted of two crimes, indicates that it is not in the best

interest of the children to be returned to mother’s care.

       {¶20} R.C. 2151.414(D)(1)(c). The children have been out of mother’s

care for far more than 12 out of 22 consecutive months. In fact, the children have

been out of mother’s care for almost four years, more than half of K.W.2’s life.

       {¶21} R.C. 2151.414(D)(1)(d). The children are in need of a legally secure

placement and this cannot be achieved without a grant of permanent custody.

Mother tested positive for cocaine three times after the children were removed from

the home, the last time being in April 2018, during the permanent-custody

proceeding.   At the time of the permanent-custody proceeding, mother did not

demonstrate a positive, sustained behavior change with respect to her sobriety.

       {¶22} R.C. 2151.414(D)(1)(3).         None of the factors set forth in R.C.

2151.414(E)(7) through (11) apply to mother.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶23} Based on the foregoing, we hold that there was competent and credible

evidence to support the juvenile court’s determination that it was in the best interest

of the children to grant permanent custody of the children to HCJFS.

       {¶24} Accordingly, in the appeal numbered C-190245, mother’s single

assignment of error is overruled, and the judgment of the trial court is affirmed. In

the appeal numbered C-190246, the children’s single assignment of error is

overruled, and the judgment of the trial court is affirmed.

                                                                  Judgment affirmed.
BERGERON and CROUSE, JJ., concur.

Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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