      [Cite as In re L.W.J., 2014-Ohio-4181.]

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




IN RE: L.W.J. and J.J.                          :   APPEAL NOS. C-140282
                                                                C-140283
                                                :
                                                    TRIAL NO. F12-220Z
                                                :

                                                :       O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: September 24, 2014



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Geers,
Assistant Prosecuting Attorney, for Appellant Hamilton County Department of Job
and Family Services,

Megan Busam, Attorney Guardian Ad Litem, for Appellants L.W.J. and J.J.,

Elizabeth Powers Mitts, Attorney Guardian Ad Litem, for Appellee Mother,

W. Edward Clore, for Appellee Mother.



Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS




HILDEBRANDT, Judge.

      {¶1}   The Hamilton County Department of Job and Family Services

(“HCJFS”) appeals the juvenile court’s judgment denying it’s motion for permanent

custody of L.W.J. and J.J. (“the children”) and granting permanent custody of the

children to their mother, the appellee.   The guardian ad litem (“GAL”) for the

children also appeals the juvenile court’s judgment awarding permanent custody to

the mother. Because the mother failed to complete court-ordered substance-abuse

and mental-health treatment and failed to secure independent, permanent housing

that was appropriate for the children, we reverse the juvenile court’s judgment

denying HCJFS’s motion for permanent custody.

                                          Facts

      {¶2}   The mother had two children, L.W.J. who was born on February 7,

2008, and J.J. who was born on March 27, 2009. The children were removed from

the mother’s home in June 2011 because of the deplorable and unsafe living

conditions. Because of the condition of the home, the mother was charged with and

convicted of child endangerment in August 2011. She was placed on community

control, and ordered to complete parenting classes and to report for random

toxicology screens. The children were placed with a maternal aunt under a safety

plan. On December 15, 2011, the mother moved in with the aunt, but two weeks

later, the aunt said that the mother and children could no longer stay with her. On

December 30, 2011, the mother signed a voluntary agreement placing the children in

the interim custody of HCJFS.




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       {¶3}   In February 2012, the children were adjudicated dependent and

neglected. At the dependency hearing, the mother stipulated to the following facts:

the house that the mother and children had been living in was “deplorable and not

safe for children to remain in the home”; the outside of the house was structurally

unsound and there was furniture littering the property; there was trash all over the

inside of the home, with medication bottles lying within the reach of the children;

there was molded food on the table, crawling with roaches; there was no edible food

in the refrigerator, only dead roaches and roach droppings; there were roaches

crawling over the food in the cabinets; there was black mold in the bathrooms; and

the carpet in the house was so dirty, it was almost black.

       {¶4}   Following the dependency hearing, HCJFS was awarded temporary

custody of the children. The juvenile court then ordered the mother to complete a

previously scheduled diagnostic assessment and follow through with any

recommended services. Further, the mother was ordered to “comply with random

drug screens,” “obtain and maintain sobriety,” “successfully complete parenting

classes,” “attend [supervised] visits” and “obtain and maintain stable appropriate

housing and income.” The visits were supervised because the mother had arrived at

one visit under the influence of “something” and smelling of marijuana.

       {¶5}   At the review hearing in May 2012, HCJFS reported that the mother

remained without appropriate housing, and had missed multiple visits with the

children as well as the scheduled diagnostic assessment. The court again ordered the

mother to obtain appropriate stable housing, attend visits and complete parenting

classes. But the mother missed most of the visits in July and August 2012, and tested

positive for cocaine in June 2012, and for marijuana in July 2012. Eventually, the




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mother completed the diagnostic assessment, and she was diagnosed with depressive

disorder,   cannabis    dependence,   alcohol       abuse   and   borderline   intellectual

functioning. It was recommended that the mother attend individual therapy and

receive substance-abuse treatment.

       {¶6}   The mother consistently visited with the children in October and

November 2012. In December 2012, the court ordered the mother to complete

“outpatient substance abuse treatment,” continue to visit the children, and obtain

and maintain stable housing and income.

       {¶7}   Three months later, in March 2013, the court was notified that the

mother had been terminated from services for substance-abuse and mental-health

treatment because of her failure to comply with the programs. The mother had also

been terminated from the parenting program at Beech Acres because she had failed

to complete the parenting coach session. The mother was also still living in the home

from which the children had been removed. The HCJFS caseworker reported that

the mother had been referred to another program for substance-abuse and mental-

health treatment and that the intake was scheduled soon. The court ordered the

mother to attend that intake appointment, visit the children every week and look at

housing options.

       {¶8}   In July 2013, the mother’s attorney asked for a GAL to be appointed

for the mother because she was having difficulty understanding the legal

proceedings. A GAL was appointed.

       {¶9}   Eventually, HCJFS moved to modify its temporary custody of the

children to permanent custody. Darrell Walton, the maternal grandmother’s fiancé,

also filed a petition for custody of the children.           Walton and the maternal




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grandmother had been approved to visit with the children, and had been doing so

with the mother in recent months.       A permanent-custody hearing was held in

October and November 2013.

                             Permanent-Custody Hearing

       {¶10} At the permanent-custody hearing, HCJFS presented the testimony of

Candace Baird, an HCJFS caseworker.        Baird testified that HCJFS was seeking

permanent custody of the children because: (1) the children had been out of the

mother’s care since June 2011; (2) the mother had been unable to find permanent

appropriate housing; and (3) the mother had refused to complete the services offered

to her for parent coaching and substance-abuse and mental-health treatment. Baird

testified that the mother refused to complete the services because she felt that she

did not need those services. Baird testified that although the mother had been

visiting the children consistently for the past six months and was affectionate and

loving with them, one month prior to the permanent-custody hearing, the mother

had told Baird that she did not want custody of the children and instead wanted the

children’s maternal grandmother to have custody. The mother also self-reported

that she was still using drugs as of September 2013.

       {¶11} Baird noted that the mother had not moved out of the house she had

been living in with the children until it had been condemned. When that occurred,

the mother had moved into the house where Walton and the children’s maternal

grandmother lived. She had only been living there one month at the time of the

permanent-custody hearing.

       {¶12} Finally, Baird testified that the children had been living with the same

foster family since being placed in the care of HCJFS. The foster parents had been




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taking the children to speech services, doctor appointments and school. The foster

parents had bonded with the children and wanted to adopt them.

       {¶13} Laura Rudolph-Young, the HCJFS employee who had completed the

home study for Walton and the maternal grandmother, testified that the house itself

was appropriate for the children to inhabit. But she was concerned about Walton’s

past domestic-violence history with women other than the maternal grandmother.

And she was also concerned about the grandmother’s history with the children’s

service agency. Apparently, the mother and her siblings had been removed from

grandmother’s care so grandmother did not raise the mother.           Despite these

concerns, Rudolph-Young noted that Walton did have custody of his three children,

and that he had lived with grandmother for six years and there had been no reports

of domestic violence.

       {¶14} Antoinette Atar Cottingham testified for HCJFS. She is currently an

employee with HCJFS, but had previously worked at Beech Acres Parenting Center

where the mother was ordered to attend parenting classes. Cottingham testified that

the mother was hard to get in touch with, and did not successfully complete the

parenting course at the time that Cottingham worked at Beech Acres.

       {¶15} Walton testified that he had custody of his biological children and that

he wanted custody of the mother’s children. He testified he was bonded to them and

that he had an appropriate house. He also indicated that the mother was living with

him “until she gets a place.”

       {¶16} The mother presented the testimony of Zach Vargo, the visitation

supervisor at the Family Nurturing Center (“FNC”) where visits between the mother

and the children had occurred. Vargo testified that for the previous two months, the




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mother’s attendance had been almost perfect, and that during the visits, the mother

was engaged with the children and the children seemed happy to see her. He also

testified that the mother had recently been able to redirect the children’s bad

behavior and that, although he had initially had concerns about the mother’s “mental

and emotional issues,” he had not had those concerns recently.

       {¶17} On cross-examination, Vargo conceded that the visits between the

mother and the children occurred in a very controlled environment with several staff

members present.

       {¶18} Although the children’s GAL did not testify, in her report she

recommended that HCJFS be awarded permanent custody of the children because of

the mother’s lack of participation in the services offered. The children were too

young at the time of the report to express their wishes. The GAL noted that the

children had bonded with their foster family.

       {¶19} Following the hearing, the court denied Walton’s petition for custody,

denied HCJFS’s motion for permanent custody, terminated HCJFS’s temporary

custody of the children and remanded custody of the children to the mother with

orders of protective supervision to HCJFS. The orders of supervision were that the

mother must (1) continue to live with Mr. Walton and the maternal grandmother; (2)

comply with random drug screens, and if any screen is positive, then immediately

engage in substance-abuse treatment; (3) maintain sobriety; and (4) engage in family

therapy with the children. The court noted that the orders of protective supervision

terminated on December 9, 2014.

       {¶20} In awarding custody to the mother, the court focused on the mother’s

good visits with the children at FNC. The court noted that although the mother’s




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lack of follow through on mental-health and substance-abuse treatment was

concerning, HCJFS had failed to show how these concerns prevented the mother

from “parenting.”    Nevertheless, the court noted that the orders of protective

supervision addressed the concerns the court had regarding the mother’s lack of

engagement in treatment.

       {¶21} HCJFS and the children’s GAL filed objections to the court’s decision.

While the objections were pending, the children’s GAL filed a review report in April

2014, indicating that the oldest child was in kindergarten and that he had expressed

that he wanted to live with “Nana,” his foster mother.

       {¶22} Following a hearing on the objections, the juvenile court overruled the

objections and adopted the magistrate’s decision remanding custody to the mother.

In its decision, the court noted that although the mother “has untreated mental

health and substance abuse issues” and that her “borderline functioning, her lack of

income, her marijuana use and her mental health issues likely contributed to her

acceptance of past living in squalor with her children,” the mother “now lives with

the maternal grandmother and Mr. Walton” and that “[i]f the mother remains there,

the physical conditions of the prior house and cleanliness concerns that originally led

to the removal of the children will be relieved.” The court also noted that there was

not a “sufficient nexus of the mother’s drug use or mental health to the detriment of

these children.”

                                          Appeal

       {¶23} HCJFS, asserting a single assignment of error, and the children’s GAL,

asserting two assignments of error, appealed the juvenile court’s decision.

Collectively, the assignments challenge the juvenile court’s determination that it was




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                      OHIO FIRST DISTRICT COURT OF APPEALS



in the best interest of the children to deny HCJFS’s motion for permanent custody

and instead, remand custody to the mother.

       {¶24} A juvenile court is authorized to terminate parental rights and to grant

permanent custody to a children services agency if it finds by clear and convincing

evidence that one of the four conditions enumerated in R.C. 2151.414(B)(1)(a)

through (d) has been met and that the children’s best interest would be served by a

grant of permanent custody to the agency. See R.C. 2151.414(B); In re W.W., 1st Dist.

Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 48.

       {¶25} R.C. 2151.414(B)(1) permits a court to grant permanent custody of a

child to a children services agency if (a) the child is not abandoned or orphaned and

has not been in agency custody for 12 months, but cannot be placed with either

parent within a reasonable time or should not be placed with either parent, (b) the

child is abandoned, (c) the child is orphaned and no relatives are able to take

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

more children services agencies for 12 months of a consecutive 22-month period.

       {¶26} Below, it was undisputed that the children had been in the temporary

custody of HCJFS for 12 months of a consecutive 22-month period, so the condition

under 2151.414(B)(1)(d) has been satisfied. Thus, the only issue before the juvenile

court, when considering the objections to the magistrate’s decision denying

permanent custody to HCJFS, was what was in the best interest of the children.

                                         Best Interest

       {¶27} In assessing the best interest of a child, the court must consider “all

relevant factors,” including (1) the child’s interaction with parents, siblings, relatives,

foster caregivers and out-of-home providers, and any other person who may




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                      OHIO FIRST DISTRICT COURT OF APPEALS



significantly affect the child, (2) the wishes of the child, as expressed by the child or

the child’s guardian ad litem, (3) the custodial history of the child, (4) the child’s

need for legally secure placement and whether that type of placement can be

achieved without a grant of permanent custody, and (5) whether any of the factors

under R.C. 2151.414(E)(7) through (11) apply. R.C. 2151.414(D)(1)(a)-(e).

       {¶28} After reviewing the record, we hold that there was clear and

convincing evidence that it was in the children’s best interest to grant permanent

custody to HCJFS, and thus, that the juvenile court erred by denying HCJFS’s

motion for permanent custody and remanding custody to the mother.

       {¶29} Initially, we note that none of the factors set forth under R.C.

2151.414(E)(7) through (11) apply. Therefore, we only consider the first four factors

in the best-interest analysis set forth above.

             The children’s relationships with others and their wishes

       {¶30} The record demonstrates that although the mother eventually began to

visit more consistently with the children and that she had progressed somewhat in

parenting skills, the fact remained that any parenting by the mother took place in a

well-controlled environment with members of FNC present to assist. All of the

mother’s interaction with the children took place under the highest form of

supervision; there was no in-home visitation or overnights with the children. And

there could not have been because the mother chose not to move out of the house

that the children had been removed from due to its deplorable living conditions.

There was also evidence presented that the mother was affectionate with the children

at visitations and was bonded with them, yet one month before the permanent-




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                      OHIO FIRST DISTRICT COURT OF APPEALS



custody hearing, she had told the HCJFS caseworker that she did not want custody of

the children.

       {¶31} Further, the evidence showed that the children were bonded with their

foster parents, who took good care of the children and wanted to adopt them. At the

time of the permanent-custody hearing, the children were too young to express their

wishes, but in a recent GAL report submitted to the court the oldest child expressed a

desire to live with the foster parents.

                                      Custodial History

       {¶32}    The children have been out of the mother’s care since June 2011, and

had been in the care of HCJFS for almost two years when the permanent-custody

hearing occurred.

                                 Legally Secure Placement

       {¶33} There was clear and convincing evidence that it was not possible to

obtain a legally secure placement for the children without a grant of permanent

custody to HCJFS. The mother had untreated mental-health and substance-abuse

issues and refused to seek treatment, even after being ordered to do so by the

juvenile court. The mother had also been ordered to obtain and maintain an income,

but the record is unclear as to whether the mother had done so. The mother failed to

find appropriate, permanent housing for the children during the two years that the

children were in the temporary custody of HCJFS. She only moved from the home

that the children had been removed from because the house was being condemned.

At that point, one month before the permanent-custody hearing, she moved in with

the maternal grandmother and Walton, but Walton testified that that living

arrangement was only temporary. There was never any evidence presented that the




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mother could provide appropriate, permanent housing for the children in the future,

and, as noted above, she certainly had not done so in the past. And it seems highly

unlikely, given the mother’s failure to participate in mental-health and substance-

abuse treatment, that the mother will find appropriate, permanent housing in the

future—the juvenile court even found that the mother’s untreated substance-abuse

and mental-health issues “likely contributed to her acceptance of past living in

squalor with her children.”

       {¶34} Considering that the mother had not remedied the reason why the

children had been removed from her care, that she had refused to obey court orders

to participate in substance-abuse and mental-health treatment, and had told the

HCJFS case worker one month prior to the permanent-custody hearing that she did

not want custody of the children, it is apparent that a legally secure placement for the

children is only possible with a grant of permanent custody to HCJFS.

                              Sufficient Nexus Not Required

       {¶35} In its decision, the juvenile court acknowledged but disregarded the

mother’s lack of compliance with the court’s orders to complete substance-abuse and

mental-health treatment, because HCJFS had not shown “a sufficient nexus of the

mother’s drug use or mental health to the detriment of these children.” But HCJFS

was not required to show that the mother’s mental-health and substance-abuse

issues during the reunification process adversely affected the children. In re W.W.,

1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 84-85. HCJFS is

only required to demonstrate that a parent’s mental condition actually interferes

with the parent’s ability to provide adequate care for the child in the adjudicatory

phase when HCJFS is seeking a finding of dependency under R.C. 2151.04(B). This




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requirement is not applicable where HCJFS has previously been awarded temporary

custody of the children and is now seeking permanent custody. Id.

       {¶36} Nevertheless, the fact that the mother remained in the home the

children had been removed from for “deplorable living conditions” instead of seeking

permanent, appropriate housing for the children was competent, credible evidence

demonstrating that the mother’s untreated issues kept her from providing adequate

care for the children.

       {¶37} Based on the foregoing, we hold that the juvenile court’s finding that it

was not in the best interest of the children to grant permanent custody to HCJFS was

against the manifest weight of the evidence. See Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, 972 N.E.2d 517. The juvenile court erred by denying HCJFS’s

motion for permanent custody and remanding custody to the mother. Accordingly,

we sustain the three assignments of error, and remand this cause to the juvenile

court with instructions to grant HCJFS’s motion for permanent custody.

                                                                   Judgment accordingly.

CUNNINGHAM, P.J., and Hendon, J., concur.



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




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