[Cite as In re L.W., 2014-Ohio-4507.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

IN RE: L.W.                                          :

                                                     :        C.A. CASE NO.         26243

                                                     :        T.C. NO.       2011-3477

                                                     :            (Civil appeal from Common
                                                                   Pleas Court, JuvenileDivision)
                                                     :

                                                     :

                                           ..........

                                           OPINION

                         Rendered on the      10th       day of          October         , 2014.

                                           ..........

TIFFANY C. ALLEN, Atty. Reg. No. 0089369, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Appellee Montgomery County Children Services

LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 W. Second Street, Suite 400, Dayton,
Ohio 45402
      Attorney for Appellant Mother

CHRISTOPHER WESNER, Atty. Reg. No. 0082699, 22 N. Market Street, Suite C, P. O.
Box 920, Troy, Ohio 45373
      Attorney for Appellee Father

JEFFREY D. LIVINGSTON, Atty. Reg. No. 0062466, 120 W. Second Street, Suite 2000,
Dayton, Ohio 45402
       Guardian Ad Litem

                                         ..........

DONOVAN, J.

       {¶ 1}    Petitioner-appellant S.W. (hereinafter “Mother”) appeals from a judgment of

the Montgomery County Court of Common Pleas, Juvenile Division, overruling her

objections and adopting the decision of the magistrate granting permanent custody of her

infant son, L.W., to Montgomery County Children Services (hereinafter “MCCS”). Mother

filed a timely notice of appeal with this Court on May 22, 2014.

       {¶ 2}    L.W. was born on April 28, 2011.         On May 2, 2011, MCCS filed a

complaint alleging that L.W. was abused and dependent. Specifically, Mother and L.W.

tested positive for opiates at the time of the child’s birth.1 L.W. was found to exhibit signs

of opiate addiction. On the same day as the complaint was filed, the juvenile court granted

an ex parte order of interim temporary custody to MCCS. On June 20, 2011, L.W. was

adjudicated dependent in light of Mother’s continuing substance abuse issues and lack of

stable housing, and temporary custody was granted to MCCS. The juvenile court granted

MCCS a first extension of temporary custody on June 11, 2012. A second extension of

temporary custody was granted on December 24, 2012.




          1
         We note that the type of opiate found in Mother and L.W.’s systems was
   methadone that had been prescribed for and administered to her during the
   pregnancy.
[Cite as In re L.W., 2014-Ohio-4507.]
        {¶ 3}     On April 17, 2013, MCCS filed a motion for permanent custody of L.W. A

hearing was held before the magistrate on July 26, 2013, and September 25, 2013.2 At the

hearing, evidence was adduced that at the time L.W. was placed in the temporary custody of

MCCS, Mother had already given birth to four other children who were removed from her

care in light of ongoing issues with substance abuse and a lack of stable housing. Mother’s

four other children had been placed in the care of A.W., the paternal grandmother. Mother

was unable to reunify with the other children because of her ongoing substance abuse and

lack of stable housing.

        {¶ 4}     Kelli Hamilton, a caseworker at MCCS, testified that she had been involved

with Mother since 2006, and she has a history of drug abuse. Hamilton testified that

Mother had participated in several drug treatment programs, including CAM, Crisis Care,

Nova House, and Women’s Recovery, but had not successfully completed any of the

programs. Additional testimony was adduced that Mother lived with L.W.’s father who

also had ongoing substance abuse problems and a history of three convictions for drug

possession, the last as recent as May of 2009. Mother’s second caseworker, Erika Respress,

testified that MCCS was concerned that Father’s presence would be detrimental for L.W.

because of his destructive behavior and lack of stability. In the report filed by the Guardian

Ad Litem (GAL), Mother was quoted as stating that Father’s inability to stop using drugs

“triggers her ongoing use.”

        {¶ 5}     Hamilton testified that a case plan was developed for Mother with the

           2
            L.W.’s biological father was also present and represented by counsel at
   the hearing before the magistrate. Father filed objections to the magistrate’s
   decision that were ultimately overruled. Father, however, is not involved in the
   instant appeal.
                                                                                          4

primary goal of reunification with L.W. Mother’s case plan objectives were to complete

drug and alcohol treatment, maintain stable housing, maintain income, and attend classes to

learn about L.W.’s drug dependency and how to care for him. The evidence adduced at the

hearing established that while she was able to maintain stable housing and income, Mother

failed to complete the drug and alcohol treatment program at Project Cure. Mother also

failed to attend any of the classes addressing L.W.’s specialized medical care. Although she

had one three-month period where all of her urine screens were negative, Mother relapsed

several times and tested positive for opiates. In fact, Mother testified that she was taking

Vicodin for pain management even though she did not have a prescription.

        {¶ 6}   On November 5, 2013, the magistrate issued a decision granting permanent

custody to MCCS. Mother filed objections to the magistrate’s decision on November 19,

2013.   On January 16, 2014, Mother filed supplemental objections to the magistrate’s

decision. The juvenile court subsequently overruled Mother’s objections and adopted the

magistrate’s decision in a judgment issued on April 25, 2014.

        {¶ 7}   It is from this judgment that Mother now appeals.

        {¶ 8}   Mother’s sole assignment of error is as follows:

        {¶ 9}   “THE    TRIAL     COURT      ERRED      IN   AWARDING       PERMANENT

CUSTODY BECAUSE THERE WAS NOT CLEAR AND CONVINCING EVIDENCE

THAT GRANTING PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE

CHILD.”

        {¶ 10} In her sole assignment, Mother contends that the juvenile court erred when it

adopted the decision of the magistrate granting permanent custody of L.W. to MCCS.
                                                                                                5

Specifically, Mother argues that the evidence adduced at the hearing established that she had

substantially completed all of her case plan objectives and was “in the midst of ongoing

services” to treat her substance abuse problems.

       {¶ 11} 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. In re K.M., 8th Dist.

Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8, citing R.C. 2151.414(B)(1).

       {¶ 12}    R.C. 2151.414(D) directs the trial court to consider all relevant factors

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
                                                                                            6

factors in R.C. 2151.414(E)(7) through (11) are applicable.

       {¶ 13} Mother does not dispute that at the time of the hearing, L.W. had been in the

temporary custody of the Agency for over twelve months of a consecutive twenty-two month

period. L.W. has resided at the same foster placement since he was born and released from

the hospital. The evidence supports a finding that L.W. is bonded with his foster family.

The evidence also established that L.W. is adoptable, and that at the time of the hearing,

MCCS found a potential adoptive family for him.

       {¶ 14} Although L.W. is too young to express his wishes with regard to custody, the

GAL indicated that the child’s best interests would be served by granting custody to MCCS.

Mother expresses the desire to retain custody of her son, but she failed to comply with the

terms of her case plan, which was designed to aid her in rectifying the problems that resulted

in MCCS’s intervention. Specifically, the record establishes that while Mother maintained

stable housing and income, she has a significant, ongoing substance abuse problem that she

failed to properly address. Mother admitted to taking Vicodin, a powerful pain medication,

without a prescription, and she relapsed into drug use numerous times during her treatment.

As a result, Mother has failed to complete drug and alcohol treatment at Project Cure.

Lastly, Mother failed to attend any of the educational classes designed to help her address

L.W.’s medical care which was necessary due to his opiate addiction at birth.

       {¶ 15} A trial court's decision on termination “will not be overturned as against the

manifest weight of the evidence 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.” (Citations omitted) In
                                                                                            7

re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, “issues

relating to the credibility of witnesses and the weight to be given the evidence are primarily

for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22.

The “rationale of giving deference to the findings of the trial court rests with the knowledge

that the trial judge is best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use these observations in weighing the credibility of the proffered

testimony.” Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.

        {¶ 16}    Our review of the record, transcript, and exhibits establishes that there is

clear and convincing evidence which supports the juvenile court’s decision finding that the

statutory elements for termination under R.C. 2151.414(B) have been satisfied. Thus, the

juvenile court did not err when it adopted the decision of the magistrate awarding permanent

custody of L.W. to MCCS.

        {¶ 17} Mother’s sole assignment of error is overruled.

        {¶ 18} Mother’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.

                                         ..........

FAIN, J., concurs.

FROELICH, P.J., dissenting.

        {¶ 19}       I disagree that the record demonstrates, by clear and convincing

evidence, that granting permanent custody of L.W. to MCCS was in L.W.’s best interest as

that term is defined by the statutes.
[Cite as In re L.W., 2014-Ohio-4507.]
        {¶ 20}      In Ohio, a trial court is authorized to terminate parental rights and to grant

permanent custody to a children services agency in several enumerated circumstances. As

relevant to this appeal, these circumstances include a finding, by clear and convincing

evidence, that permanent custody is in a child’s best interest, coupled with a finding that 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. R.C. 2151.414(B); In re S.J., 2d

Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14, citing In re K.M., 8th Dist. Cuyahoga

No. 98545, 2012-Ohio-6010, ¶ 8. The burden of proof is on the children services agency.

In re L.C., 2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14.

        {¶ 21}     R.C. 2151.414(D) directs the trial court to consider all relevant factors

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.          These factors include the

parents’ criminal records, if any, including any offenses against children and other

mistreatment or abandonment of children, and the existence of any siblings with respect to

which the parents’ parental rights have been involuntarily terminated.

        {¶ 22}     The burden of clear and convincing evidence “is that measure or degree of
                                                                                             9

proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of

such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established.” In re R.L.H., 2d Dist. Montgomery No. 25734, 2013-Ohio-3462, ¶ 10,

citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus.

       {¶ 23} Extensive testimony was presented at the permanent custody hearings

regarding “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.” R.C.

2151.414(D)(1).    L.W. was removed at birth after he and Mother tested positive for

Methadone, which Mother had been prescribed by Project Cure during her pregnancy. At

the time L.W. was placed in the temporary custody of MCCS, Mother had already given

birth to four other children. Legal custody of Mother’s four older children had been given

to the children’s paternal grandmother, with one year of protective supervision by MCCS.

(Protective supervision expired on April 27, 2011, the day before L.W. was born.) L.W.’s

parents remained involved with and frequently see their older children.

       {¶ 24} Kelli Hamilton, the family’s caseworker at the time of L.W.’s removal,

testified that L.W.’s parents had visitation with him twice per week for three hours a day.

Hamilton stated that the visits “went very well” and that “[t]here was a definite bond and

attachment between [L.W.] and both parents.” Hamilton testified that there were “never

any noted concerns with parenting, basic parenting skills.          They were always very

appropriate with [L.W.]. Foster mom never had any concerns after visits.” Other than the
                                                                                          10

30 days that Mother was receiving residential treatment at Project Cure, Mother consistently

 visited with L.W. Many times, L.W.’s siblings would also participate in visitation. Erika

Respress, the family’s caseworker since September 2012, stated that Mother continued to

consistently visit with L.W., that L.W. had bonded with his parents and siblings, and that no

concerns were raised during those visits. The Guardian Ad Litem (“GAL”) also recognized

the bond between L.W. and his parents and siblings.

       {¶ 25}   Respress testified that L.W. was an “adoptable child” and that if MCCS

obtained permanent custody, L.W. would be transferred to the adoption unit and placed in a

potential adopters’ home as a foster-to-adopt placement. The potential adoptive family that

MCCS had identified was not the foster family, but friends of the foster mother. There was

no testimony about whether L.W. had ever interacted with the potential foster family.

Respress indicated that L.W. would be “cut off” from his parents and siblings if he were

adopted.

       {¶ 26}   Turning to the custodial history of L.W. and his need for a legally secure

permanent placement, R.C. 2151.414(D)(3) & (4), L.W. had been in temporary custody

since shortly after his birth, and the juvenile court could not grant another extension of

temporary custody. MCCS had not identified any relatives who are willing and able to take

L.W. I agree that this factor weighs in favor of granting permanent custody to MCCS.

       {¶ 27} The evidence indicated that MCCS had ongoing concerns about Father’s

drug use. L.W.’s parents were married and lived together throughout their involvement

with MCCS. Mother testified at the September hearing that Father had moved out due to

the agency’s concerns about his presence in the house. Respress testified that she did not
                                                                                         11

believe Mother’s testimony, but there was no evidence to contradict it. It was undisputed

that Mother has appropriate housing and income for L.W.

       {¶ 28} Repress testified that Mother was supposed to take special classes to learn

about L.W.’s “dietary needs [and] possible developmental or physical issues that he would

have because of that drug addiction” (emphasis added), and she did not do so. The case

plan provided that “[p]arents will learn about medical care necessitated by the baby’s drug

addiction and be able to meet their baby’s medical needs during visitation.” However,

Respress testified that L.W. does not live in a treatment foster home and that he has “no

special needs.” There was no testimony that L.W. has any “developmental or physical

issues” or that, since L.W.’s methadone withdrawal in the hospital after his birth, any

additional medical care was necessitated by his positive methadone test at birth. Mother’s

failure to take classes has minimal weight.

       {¶ 29} At the time of the permanent custody hearing, L.W. was two years old and

was too young to express his wishes. R.C. 2151.414(D)(2). The July 2013 report filed by

the Guardian Ad Litem identified drug use as the major issue in the case. He stated that

Mother “was consistently testing positive for opiates in 2013 (as well as Methadone which is

to be expected). One [of] the progress notes [from Project Cure] dated May 21, 2013 has

Mother reporting that ‘her husband has just been unsuccessfully dosed out of the clinic and

triggers her ongoing use.’” The GAL stated to the trial court at the September 2013 hearing

that this was a “sad case” and that the older children know L.W. The GAL reiterated that

the “main issue during that whole time has been a drug issue, and there have been periods of

times where both parents have maintained somewhat sobriety, but there’s always been
                                                                                                12

relapses.” He indicated that he did not believe that L.W. could be reunified with his parents

in a reasonable amount of time, and he recommended permanent custody to MCCS.

       {¶ 30} The crux of the magistrate’s and trial court’s decisions was that Mother had

a significant substance abuse problem that has not been addressed, and that this problem was

severe enough to interfere with her ability to care for L.W. MCCS emphasized, and the

juvenile court found, that Mother had been involved with MCCS since 2006, that Mother

had several prior attempts at sobriety, and that she had suffered relapses on several

occasions. MCCS presented testimony of Mother’s drug abuse history prior to L.W.’s birth.

       {¶ 31}    The record reflects that MCCS became involved with Mother in 2006 due

to her addiction to heroin. Although the record states that Mother repeatedly tested positive

for “opiates,” any positive tests since L.W.’s birth appear to be for Methadone and/or

Vicodin. MCCS refers to Mother’s repeated relapses, but there was no evidence at the

hearing that Mother has tested positive for heroin or other illegal drugs since L.W.’s birth.

       {¶ 32} The evidence at the hearings regarding Mother’s drug use since L.W.’s birth

did not substantiate the trial court’s conclusion that Mother continues to have a substantial

drug abuse problem that affects her ability to parent L.W. According to the testimony,

approximately two months before L.W.’s birth, Mother began outpatient substance abuse

treatment at Project Cure, which specifically addresses opioid dependency, and she was

prescribed methadone. According to Frank Wylie, an outpatient substance abuse counselor

at Project Cure, Mother entered Project Cure’s residential program in the beginning of

September 2012.      Wylie provided individual and group counseling sessions for her.

Mother had no issues while she was in residential treatment. Mother has random drug
                                                                                            13

screens at least once per month as an active client; while Mother worked with Wylie, all of

her screens were negative. The residential program is a 30-day program; Mother successfully

completed the program and was transitioned to outpatient treatment.

       {¶ 33} Outpatient treatment at Project Cure has four levels that must be completed

before a client is successfully discharged. After the residential treatment, Mother was

placed in level two. Wylie testified that Mother was “at least level two if not level three” at

the time of the July 2013 hearing. Wylie stated that the program was “designed to be about

two and half years” from “start to finish.” Mother had not been out of the residential

program long enough to be at level four. Hamilton further stated that Mother was in

residential treatment and was no longer testing positive when Hamilton stopped being her

caseworker.

       {¶ 34}    Respress testified that Mother has not used any illegal substances, but she

admitted in April 2013 and June 2013 to taking Vicodin, without a prescription, for back

pain. Respress stated that Mother has a ruptured disk. Mother was continuing to receive

substance abuse treatment at Project Cure.        Respress stated that she has been able to

randomly drug screen Mother, and Mother has not “tested positive for anything that’s caused

concern.” A laboratory report for Mother, dated April 2013, indicated that Mother tested

positive for methadone; the results for other substances were negative. Mother testified that

the only thing she “had touched in over three years” was Vicodin, which she takes to treat

pain. There was no evidence that Mother’s use of Vicodin for back pain, albeit without a

prescription, impairs her ability to parent or her relationship with her son.

       {¶ 35} As the Guardian Ad Litem opined, this is a “sad case”; there are most often
                                                                                        14

no clear-cut winners and losers in a permanent custody situation. Further, there may be

facts and circumstances known to the investigators and case workers that never made their

way to the record. However, based on the testimony presented at the permanent custody

hearings, the exhibits presented at the hearings, and the Guardian Ad Litem report, I would

conclude that the evidence does not support the termination of Mother’s parental rights and

the granting of permanent custody of L.W. to MCCS on the ground that permanent custody

was in L.W.’s best interest.

                                       ..........

Copies mailed to:

Tiffany C. Allen
Lucas W. Wilder
Christopher Wesner
Jeffrey D. Livingston
Hon. Anthony Capizzi
