[Cite as In re O.G., 2013-Ohio-744.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

IN RE: O.G.                                           C.A. No.      12CA010294
       E.G.
       O.G.

                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
                                                      CASE Nos. 10JC31637
                                                                 10JC31638
                                                                 10JC31639

                                 DECISION AND JOURNAL ENTRY

Dated: March 4, 2013



        HENSAL, Judge.

        {¶1}     Appellant, Olga N. (“Mother”), appeals from a judgment of the Lorain County

Court of Common Pleas, Juvenile Division, that terminated her parental rights to three of her

minor children and placed them in the permanent custody of Lorain County Children Services

(“LCCS”). This Court affirms.

                                                I.

        {¶2}     Mother is the natural mother of O.G., born April 24, 2008; E.G., born May 10,

2009; and O.G., born September 20, 2010.             The father of the three children (“Father”)

participated in the trial court proceedings but is not a party to the appeal. Mother also has an

older child who was at issue in the trial court proceedings. That child was ultimately placed in

the legal custody of her father, however, and Mother has not appealed that disposition.
                                                2


       {¶3}    On December 16, 2010, LCCS initiated this case by filing complaints, which

alleged that all four of Mother’s children were neglected and dependent and that the youngest

child was also abused. The youngest child, then less than three months old, had been admitted to

the hospital two days earlier with physical injuries that included a broken femur, bruising on the

buttocks, torn skin around the lips, and burst blood vessels around the eyes. Although Mother

stated that the baby’s injuries had been caused by Mother’s oldest child dropping her when she

tried to carry her up the stairs, doctors concluded that the baby’s injuries were inconsistent with

an accidental fall. Because abuse was suspected, the case was referred to LCCS and the Lorain

Police Department. The oldest child told LCCS that Father had punched and hit the baby and

Mother eventually conceded that Father harmed the child. Although the details of the parents’

criminal cases are not entirely clear from the record, each parent was charged with felony child

endangering and Father was also charged with assault.

       {¶4}    LCCS had investigated this family one year earlier, in response to a referral that

Father had physically abused one of the older children. A complaint was not filed at that time,

however, because the parents moved with the children and LCCS was unable to locate them. In

addition to abuse of the youngest child, the agency’s investigation in this case revealed that

Mother had repeatedly been the victim of domestic violence by Father. The agency also learned

that Mother sometimes left the young children at home alone under the supervision of the oldest

child, then only seven years old.

       {¶5}    Because violence in the home was the primary concern of LCCS, the initial case

plan focused on the parents addressing domestic violence through education and counseling.

Father was also required to address his substance abuse and mental health problems. From the

beginning of this case, however, Father refused to work with LCCS. Because Father posed a
                                                 3


threat to the entire family and refused to address his parenting problems, the agency amended the

reunification plan to require Mother to end her violent relationship with him and further address

her domestic violence and parenting problems through education and counseling.

       {¶6}    The caseworker encouraged Mother to engage in reunification services before the

initial case plan was filed, emphasizing that the sooner Mother completed domestic violence

classes and counseling, the sooner she could be reunified with her children. Although Mother

repeatedly told the caseworker that she would end her relationship with Father and work on the

goals of the case plan, she continued to live with Father and did not engage in any educational or

counseling services for most of the next year. Mother ultimately moved out of Father’s home

and obtained a civil protection order against him in September or October of 2011, but the two

continued to spend time together in violation of the order.

       {¶7}    By the end of 2011 or beginning or 2012, Father was incarcerated on unrelated

criminal charges and was facing a four-year prison term. Consequently, Mother and Father

ended their relationship. Although Mother reported that she was engaging in reunification

services, the caseworker and guardian ad litem were unable to verify her compliance or progress

because she refused to sign releases or signed releases and later revoked them.        Moreover,

Mother almost immediately became romantically involved with another man, but refused to

provide LCCS with information about him.

       {¶8}    Although LCCS had been able to place the children with two maternal aunts, the

children were removed from the aunts’ homes after a few months due to concerns about their

safety and well-being in those homes. On March 12, 2012, more than 14 months after the

children had been placed in its temporary custody, the State moved for permanent custody of

O.G., E.G., and O.G. Following three days of hearing that began on June 1 and ended on July
                                                 4


25, 2012, the trial court found that the children had been in the temporary custody of LCCS for

more than 12 of the prior 22 months and that permanent custody was in their best interests.

Consequently, it terminated parental rights and placed the children in the permanent custody of

LCCS. Mother appeals and raises two assignments of error, which this Court consolidates for

ease of review.

                                                 I.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT’S DECISION WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE PURSUANT TO O.R.C. 2151.414(B)(2).

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN NOT FOLLOWING THE GUARDIAN AD
       LITEM RECOMMENDATION FOR AN EXTENSION OF TIME.

       {¶9}    Mother’s first assignment of error is that the trial court’s permanent custody

decision was not supported by the evidence presented at the hearing. Her second assignment of

error challenges the trial court’s best interest determination insofar as the court failed to follow

the recommendation of the guardian ad litem to extend temporary custody.             The evidence

presented at the hearing, however, fully supported the trial court’s permanent custody decision,

including its rejection of the guardian’s recommendation.

       {¶10} Before a juvenile court may terminate parental rights and award to a proper

moving agency permanent custody of children, it must find clear and convincing evidence of

both prongs of the permanent custody test that: (1) the children are abandoned, orphaned, have

been in the temporary custody of the agency for at least 12 months of the prior 22 months, or that

the children cannot be placed with either parent within a reasonable time or should not be placed

with either parent, based on an analysis under R.C. 2151.414(E); and (2) the grant of permanent
                                                 5


custody to the agency is in the best interests of the children, based on an analysis under R.C.

2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S., 75 Ohio

St.3d 95, 99 (1996).

       {¶11} The trial court found that the first prong of the permanent custody test was

satisfied because the children had been in the temporary custody of LCCS for more than 12 of

the prior 22 months. Mother does not contest that finding, but instead argues that the trial court

lacked evidence to support its conclusion that permanent custody was in the best interest of the

children.

       {¶12} When determining whether a grant of permanent custody is in a child’s best

interests, the juvenile court must consider the following factors:

       (a) The interaction and interrelationship of the child with the child’s parents,
       siblings, relatives, foster caregivers and out-of-home providers, and any other
       person who may significantly affect the child;

       (b) The wishes of the child, as expressed directly by the child or through the
       child’s guardian ad litem, 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 one or more public children services agencies or private
       child placing agencies for twelve or more months of a consecutive twenty-two-
       month period * * *;

       (d) 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 * * *.

R.C. 2151.414(D)(1)(a)-(d).1




1
  The factor set forth in R.C. 2151.414(D)(1)(e) does not apply to the facts of this case pertaining
to Mother because her child endangering charges remained pending at the time of the hearing.
See R.C. 2151.414(E)(7).
                                                 6


       {¶13} During the twenty months that the children had lived outside Mother’s custody,

Mother saw them no more than once a week during supervised visitation.         During June 2011,

pursuant to an order of the court handling her criminal charges, Mother was prohibited from

having any contact with the children. While the children were placed with their maternal aunts

for a few months, however, the aunts permitted Mother to have contact with them in violation of

the order. The children were removed from the aunts’ homes for that reason and others. By

September 2011, however, the no contact order was modified to permit Mother to have contact

with the children who had not been injured. Mother resumed weekly, supervised visits with her

older children but she continued to have no contact with the youngest child.

       {¶14} Mother’s limited interaction with her young children was never expanded beyond

weekly, supervised visits because she would not comply with the requirements of the case plan.

Specifically, aside from lacking stable employment and housing, although she eventually

engaged in some domestic violence classes and counseling, Mother never demonstrated that she

would put the needs of her children ahead of her own and protect them from inappropriate men.

During the first year of this case, Mother continued to maintain a relationship with Father and

did not comply with the reunification goals of the case plan. Because she was facing criminal

charges, on the advice of counsel, she did not discuss the baby’s injury with LCCS or police.

Nonetheless, although LCCS wanted Mother to accept responsibility for the child’s injury, that

was not a specific requirement of the case plan. Aside from the child’s injury, Mother admitted

that there had been ongoing violence by Father in her home, but she did not adequately address

that problem and take steps to protect the safety of her children.

       {¶15} It was apparent to LCCS that Mother could not provide a safe home for the

children if she continued her relationship with Father, who controlled the entire family with
                                                7


violence and fear, particularly because Father refused to address his violent behavior or mental

health and substance abuse problems. Father was described by several witnesses as a violent and

controlling man who had a “short fuse.” There was lay testimony that his anger problem was

exacerbated by untreated mental illness and substance abuse. Mother’s relationship with him

had been plagued by his ongoing violent and controlling behavior. For example, one family

member described an incident in which Mother tried to jump out of a moving car while she was

pregnant with one of the children because Father was threatening to kill her.    The caseworker

also testified about a telephone call to Mother during which she could hear Father in the

background yelling at Mother to get off the phone right before the call was disconnected.

       {¶16} After Father went to prison and Mother ended her relationship with him, her

participation in reunification services improved. At about the same time, however, she began a

relationship with another man. LCCS was concerned that, although Mother had ended her

unhealthy relationship with Father, she immediately became involved with another man. She

would not provide the caseworker with any information about the man, who would potentially

have contact with her children, except that he was a truck driver who traveled out of state.

Mother often traveled with the man and, consequently, did not work on the case plan while she

was out of the area. The caseworker eventually discovered the identity of the man and that he

had a criminal history.

       {¶17} Mother’s refusal to communicate with the caseworker, guardian ad litem, and

others posed an obstacle to reunification throughout this case.        She changed residences

repeatedly but did not keep the caseworker informed with up-to-date contact information and

often would not speak to the caseworker when she did reach her by telephone. The caseworker

testified that she received more information from Mother’s sisters and parents than she did from
                                                8


Mother herself. The guardian ad litem similarly testified that “it’s like pulling teeth to get

information” from Mother.

       {¶18} It was apparent to the caseworker that Father had prevented Mother from

obtaining reunification services, but Mother would not follow the caseworker’s advice to leave

him. Moreover, even after Father was incarcerated, Mother did not make significant progress

toward reunification. At the time of the hearing, Mother had not completed domestic violence

classes or counseling, during the 19 months that this case was pending. She continued to lack

stable housing and employment, but was financially dependent on a man, who had no bond with

her children and had not been approved by LCCS as a suitable person to have contact with them.

Mother was unable to meet her own needs without that man, much less the needs of her children.

Moreover, it was further revealed at the hearing that Mother was pregnant with another child, but

she had not disclosed her pregnancy to her counselor, the guardian ad litem, or the caseworker.

       {¶19} In the homes of their respective foster parents, on the other hand, the children had

developed loving relationships in safe and stable environments. The children had been placed in

two separate foster homes due to the special needs of the injured baby. They remained in the

same homes throughout most of this case, except for a period of a few months when they were

placed with maternal aunts. The foster parents testified about the positive changes in the

children that had occurred during this case. The youngest child arrived in the foster home at the

age of approximately three months, with extensive injuries that required special care. The foster

mother explained that even changing the baby’s diaper was a two-person job because she wore a

harness on her broken leg, which had to be carefully maneuvered during diaper changing to

maintain the appropriate tension on her leg. Almost one and one-half years after her injury, the

child continued to require special medical care. There was concern that the injured leg may
                                                 9


require surgery because, although the child was walking, she still did not move the injured leg

properly. Her initial symptoms of eye hemorrhaging had also suggested that she had been

shaken, and it was still uncertain whether she had sustained any brain injury.

       {¶20} The foster mother further testified that the child is now otherwise happy and

healthy. She had maintained a relationship with the foster mother of the other children and

arranged for the three siblings to play together on a regular basis. They planned to maintain a

relationship between the siblings. She further testified that she loves this child and would like to

adopt her.

       {¶21} The foster mother of the older two children testified that, when they arrived in her

home, they were aggressive and lacked any self-control. They acted out continually by hitting,

spitting, biting, and throwing objects. She explained that, with firm boundaries in her home, the

children’s behavior had improved and they had become assimilated into her family. She also

expressed a desire to adopt the children if the trial court terminated parental rights. She had been

encouraging a relationship between the two siblings and their youngest sister, as well as their

older half-sibling, who lived in Florida with her father. She planned to continue maintaining the

sibling relationships.

       {¶22} The guardian and the caseworker testified about the positive interactions and

interrelationships between the children and their foster parents. The guardian ad litem had

observed the children in their foster homes on several occasions and found the homes and

caregivers to be appropriate and opined that the children had become bonded with those families.

He opined that the children were “in great hands” in the foster homes. The caseworker further

testified that the children were “blossoming” in their respective foster homes and that the two

older children had become “completely different” as they developed in their foster home.
                                                10


       {¶23} The second best interest factor required the trial court to consider the wishes of

the children as stated by the children themselves or by the guardian ad litem. Because the oldest

of the three children was only four years old at the time of the hearing, the guardian ad litem

spoke for them. Although he believed that Mother was not ready to have the children returned to

her custody at that time, he recommended that the trial court extend temporary custody for

another six months. Mother has argued that the trial court erred in failing to follow that

recommendation.

       {¶24} Although the trial court was required to consider the guardian’s recommendation

as well as each of the other statutory best interest factors, as this Court has emphasized, “[t]he

best interest test is a balancing test of several factors and the Supreme Court has stressed that no

single factor is controlling.” In re C.G., 9th Dist. No. 24097 and 24099, 2008-Ohio-3773, ¶ 28,

citing In re Schaefer, 111 Ohio St.3d 498, 2006–Ohio–5513, at ¶ 56. It is apparent from the trial

court’s judgment entry and its extensive questioning of the guardian ad litem that the court

considered the guardian’s recommendation but reasonably concluded that permanent custody,

not an extension of temporary custody, was in the best interests of the children.

       {¶25} To begin with, the guardian ad litem and Mother were both under the mistaken

impression that the trial court had authority to extend temporary custody for another six months.

Although a trial court has authority to grant two six-month extensions of the initial temporary

custody order, R.C. 2151.353(F) was amended, effective April 7, 2009, to clarify that the trial

court cannot extend temporary custody beyond the two-year sunset date:

       [T]he court shall not order an existing temporary custody order to continue
       beyond two years after the date on which the complaint was filed or the child was
       first placed into shelter care, whichever date is earlier, * * *.
                                                  11


Identical language was likewise added to R.C. 2151.415(D)(4), which had previously provided

simply that “a court shall not grant an agency more than two extensions of temporary custody[.]”

       {¶26} The complaints in this case were filed on December 16, 2010, and the children

were placed in emergency temporary custody of LCCS the same day. Therefore, December 16,

2012 was the two-year sunset date and the trial court lacked authority to extend temporary

custody beyond that date. Because the permanent custody hearing concluded on July 25, 2012,

less than five months before the two-year sunset date of December 16, 2012, the trial court could

not extend temporary custody for any more than another few months.

       {¶27} In addition to being constrained by statutory time limits, the trial court had

authority to extend temporary custody only if it first found, based on clear and convincing

evidence, that the extension was in the best interest of the children, that there had been

“significant progress” on the case plan, and that there was “reasonable cause to believe that the

child[ren] [would] be reunified with one of the parents or otherwise permanently placed within

the period of extension.” R.C. 2151.415(D)(1). See In re A.B., 9th Dist. No. 25460, 2010-Ohio-

5464, ¶ 14.    The evidence before the trial court failed to demonstrate that any of these

prerequisites had been satisfied.

       {¶28} Although the guardian ad litem recommended extending temporary custody, he

recommended an extension primarily because Mother had not been given a full two years to

work on reunification and, according to what she had told him, she was complying with the

requirements of the case plan. The guardian conceded that he had been unable to confirm

whether Mother was actually complying with the case plan because she had not signed the

necessary releases. He also admitted that permanent custody may be “inevitable” if Mother was

not, in fact, complying as she had represented.
                                               12


       {¶29} As explained above, Mother’s behavior demonstrated that she had not made

significant progress toward reunification with her children and that extending temporary custody

was not in their best interests. Moreover, even if she had been engaged in counseling, the

undisputed evidence revealed that Mother had not been open and honest with her counselor.

Mother told her counselor that she had completed domestic violence classes, but she had not, and

she had not disclosed to her counselor that she was again pregnant. It was unclear whether she

had informed the counselor or the guardian ad litem about her new relationship with another man

and that she was traveling with him. Consequently, the guardian’s recommendation to extend

temporary custody was not supported by the evidence.

       {¶30} The custodial history of the children included a period of over 17 months in the

temporary custody of LCCS. Because the children were only four, three, and less than two years

old at the time of the hearing, this time period represented a significant portion of their young

lives. This Court has repeatedly stressed, however, that “‘the time period in and of itself cannot

be held against the parent without considering the reasons for it and the implications that it had

on this child.’” In re C.M., 9th Dist. No. 21372, 2003-Ohio-5040, ¶ 16, quoting In re Smith, 9th

Dist. No. 20711, 2002 WL 5178, *5 (Jan. 2, 2002). During the early months of the case plan,

Mother failed to participate in any reunification services, although she repeatedly told the

caseworker that she would. By the time the first year of case came to an end, however, Mother

was participating in reunification services and was ending her relationship with Father.

Therefore, the trial court extended temporary custody to allow her more time to work toward

reunification with her children. During the next six months, however, although she engaged in

some counseling, she otherwise made no progress toward providing a safe and stable home for
                                                13


her children. The children, on the other hand, had been flourishing in their foster homes, where

they had spent most of their lives.

       {¶31} Because the children had spent most of their lives living in temporary placements,

they were in need of a legally secure permanent placement. Mother was not prepared to provide

a safe permanent home for them and LCCS had been unable to find any suitable relatives who

could. The agency had considered several different relatives who were willing to provide homes

for the children, but initially ruled out some of them because they had drug problems, a criminal

history, or past involvement with children services agencies. LCCS did place the children in the

homes of two maternal aunts, but later removed them because the aunts permitted Mother and/or

Father to have repeated contact with the children in violation of the criminal court order. LCCS

had further concerns that the aunts were not able to provide for the children’s basic needs and

that the maternal grandfather, who lived with one of the aunts, had repeatedly disciplined the

children by beating them with a belt or threatening to do so.

       {¶32} Because LCCS was unable to find any other suitable relatives to take custody of

the children, they were returned to their original foster homes.       They almost immediately

readjusted and became comfortable in those homes, where they continued to reside throughout

the remainder of the case. Because the foster parents had expressed interest in adopting the

children, the trial court reasonably concluded that a legally secure permanent placement could

best be achieved by granting the agency’s motion for permanent custody.

       {¶33} Having reviewed all of the evidence in the record, this Court concludes that the

trial court had clear and convincing evidence before it to support its finding that permanent

custody was in the best interests of these children. Mother’s assignments of error are overruled.
                                                14


                                                III.

       {¶34} Mother’s assignments of error are overruled. The judgment of the Lorain County

Court of Common Pleas, Juvenile Division, is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JENNIFER HENSAL
                                                       FOR THE COURT



BELFANCE, P. J.
WHITMORE, J.
CONCUR.
                                          15


APPEARANCES:

BARBARA A. WEBBER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and AMY L. PRICE, Assistant Prosecuting Attorney,
for Appellee.
