[Cite as In re M.A., 2019-Ohio-5367.]

                                        IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY



IN RE:                                            :

       M.A.                                       :          CASE NO. CA2019-08-129

                                                  :                   OPINION
                                                                      12/30/2019
                                                  :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                             Case No. JN2017-0105



Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Amy R. Ashcraft, P.O. Box 172, Seven Mile, Ohio 45062, for appellant

Legal Aid Society of Southwest Ohio, LLC, Jamie Landvatter, 10 Journal Square, 3rd Floor,
Hamilton, Ohio 45011, Guardian ad Litem



         HENDRICKSON, P.J.

         {¶ 1} Appellant, father of M.A., appeals the decision of the Butler County Court of

Common Pleas, Juvenile Division, granting permanent custody of M.A. to appellee, Butler

County Department of Job and Family Services, Children Services Division ("BCDJFS").1 For

the reasons detailed below, we affirm the juvenile court's decision.

         {¶ 2} BCDJFS filed a complaint on March 20, 2017, alleging dependency of M.A. and

requesting temporary custody. At the time of the complaint, M.A. was nearly two and one-


1. While a party to the permanent custody proceeding, M.A.'s mother did not appeal the decision granting
permanent custody to BCDJFS.
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half years old and lived with his mother and three older half-siblings.2 The juvenile court

granted temporary custody and BCDJFS placed M.A. with his paternal grandmother. That

placement proved unsuitable, so in early April 2017, M.A. was moved into foster care. Based

in part on the need to change placement and because the initial complaint did not provide

specific facts for the dependency allegation, BCDJFS filed an amended complaint on April 6,

2017. The amended complaint alleged several bases for dependency: M.A.'s mother was

homeless, unemployed, and had been sentenced to serve time in jail; appellant had active

warrants from the Middletown Municipal Court for drug offenses; appellant had been arguing

and fighting over housing and finances in the presence of the children; and appellant had

violated an earlier order from the court to have no contact with M.A.

        {¶ 3} On June 5, 2017, the juvenile court adjudicated M.A. dependent.                             A

dispositional hearing was held on July 7, 2017 before a magistrate. The magistrate ordered

M.A. to remain in the temporary custody of BCDJFS and approved a case plan which had the

goal of reunification of M.A. with his parents. This case plan required appellant to complete a

substance abuse/mental illness assessment, complete treatment and therapeutic programs

based on that assessment, submit to drug screening upon request, procure and maintain

stable employment and housing, participate in a parenting education program, and

demonstrate an understanding of his child's individual needs with an ability to consistently

meet those needs. The juvenile court subsequently adopted the magistrate's dispositional

orders.

        {¶ 4} During the pendency of the case, appellant only limitedly complied with the

case plan requirements. Appellant completed the required substance abuse/mental illness

assessment and requested drug screenings, however, he failed to complete the



2. M.A.'s siblings were also subject to separate abuse, neglect, dependency proceedings. These siblings have
no biological relation to appellant.
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recommended treatment and therapeutic programs. In addition, appellant routinely tested

positive for illicit controlled substances such as amphetamine, methamphetamine, cocaine,

and marijuana on requested drug screenings. Furthermore, appellant was intermittently

incarcerated for different criminal charges. Finally, appellant had his regular visitation

appointments with M.A. suspended on two occasions because of his failure to appear at

appointments or arrive late to appointments two times within a 30-day period.

       {¶ 5} On October 12, 2018, BCDJFS moved for permanent custody of M.A. In March

2019, a juvenile court magistrate held a hearing on the matter. At the hearing, the magistrate

heard testimony from M.A.'s mother, appellant, and the assigned BCDJFS caseworker.

Additionally, BCDJFS presented several documentary exhibits including the drug screening

analyses, the social summary reports generated by BCDJFS, appellant's substance

abuse/mental    illness   assessments,     and     the   reports   from   appellant's   limited

treatment/therapeutic services.

       {¶ 6} On March 25, 2019, the magistrate granted the motion for permanent custody.

The juvenile court overruled objections filed by appellant and adopted the magistrate's

decision. Appellant now appeals, raising two assignments of error for review. For ease of

analysis, the two assignments of error will be discussed together.

       {¶ 7} Assignment of Error No. 1:

       {¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

GRANTING BCCS'S MOTION FOR PERMANENT CUSTODY WITHOUT THE SUPPORT

OF CLEAR AND CONVINCING EVIDENCE.

       {¶ 9} Assignment of Error No. 2:

       {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY

GRANTING THE STATE'S MOTION FOR PERMANENT CUSTODY WHICH WAS NOT

SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.
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       {¶ 11} In both assignments of error, appellant argues that the trial court should not

have granted BCDJFS permanent custody because BCDJFS failed to prove permanent

custody was in M.A.'s best interest and the decision was against the manifest weight of the

evidence.

       {¶ 12} R.C. 2151.414 provides a juvenile court the authority to terminate parental

rights and award permanent custody to a public children services agency. The state is

required to prove by clear and convincing evidence that the statutory standards for

permanent custody have been met before a natural parent's constitutionally protected liberty

interest in the care and custody of her child may be terminated. In re K.W., 12th Dist. Butler

No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v. Kramer, 455 U.S. 745, 102

S.Ct. 1388 (1982). The clear and convincing standard of proof requires such evidence that

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

be established." In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 18.

       {¶ 13} Pursuant to R.C. 2151.414(B)(1), the juvenile court must make findings

pursuant to a two-part test. In re C.D., 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio-

4911, ¶ 14. First, the juvenile court must find that it is in the best interest of the child to grant

permanent custody to the requesting agency. In re C.B., 12th Dist. Clermont No. CA2015-

04-033, 2015-Ohio-3709, ¶ 10. Second, the juvenile court must find that one of the following

R.C. 2151.414(B)(1)(a)-(e) factors exists: the child is abandoned; the child is orphaned; the

child has been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period; where the preceding three factors do not apply, the child

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

either parent; or on three separate occasions the child or another child in the custody of the

parent from whose custody the child has been removed has been adjudicated an abused,

neglected, or dependent child. In re L.S., 12th Dist. Brown Nos. CA2019-03-001 and
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CA2019-03-002, 2019-Ohio-3143, ¶ 19.

       {¶ 14} On review, an appellate court is "generally limited to considering whether

sufficient credible evidence exists to support the juvenile court's determination." In re A.S.,

12th Dist. Butler Nos. CA2019-05-071, CA2019-05-072, and CA2019-05-073, 2019-Ohio-

4127, ¶ 19. Therefore, this court will reverse the juvenile court's decision to grant permanent

custody only if there is a sufficient conflict in the evidence presented. In re W.J.T., 12th Dist.

Butler No. CA2019-03-047, 2019-Ohio-3051, ¶ 22.

       {¶ 15} Nevertheless, an appellate court may conclude that the judgment is against the

manifest weight of the evidence. In re A.S. at ¶ 19. To determine whether the judgment was

against the manifest weight of the evidence, an appellate court:

              "weighs the evidence and all reasonable inferences, considers
              the credibility of witnesses and determines whether in resolving
              conflicts in the evidence, the finder of fact clearly lost its way and
              created such a manifest miscarriage of justice that the judgment
              must be reversed and a new trial ordered."

In re S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-094

thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, ¶ 20. In weighing the evidence, there is a presumption in favor of the

findings made by the finder of fact and evidence susceptible to more than one construction

will be construed to sustain the verdict and judgment. In re C.Y., 12th Dist. Butler Nos.

CA2014-11-231, CA2014-11-236, CA2014-11-237, and CA2014-11-238, 2015-Ohio-1343, ¶

25, citing Eastley at ¶ 21.

       {¶ 16} On appeal, appellant does not dispute that the trial court had sufficient

evidence to satisfy the second part of the two-part test. The juvenile court found that R.C.

2151.414(B)(1)(d) applied because M.A. had been in the temporary custody of BCDJFS for

more than 12 months out of a consecutive 22-month period from the date of adjudication to

the time BCDJFS's moved for permanent custody. The record contains competent credible
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evidence supporting this finding. The second prong of the permanent custody test is

therefore satisfied.

       {¶ 17} Instead, appellant contends that the juvenile court erred in its consideration of

the best interest of M.A. In examining the child's best interest, a juvenile court is required to

consider all relevant factors, including, but not limited to the following:

              (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, or 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
              and, as described in division (D)(1) of section 2151.413 of the
              Revised Code, the child was previously in the temporary custody
              of an equivalent agency in another state;

              (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;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this section
              apply in relation to the parents and child.

R.C. 2151.414(D)(1)(a)-(e). In considering these best interest factors, "[t]here is not one

element that is given greater weight than the others pursuant to the statute." In re Schaefer,

111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. Moreover, the focus is on the child's best

interest, therefore "[p]arental interests must be subordinated to the child's interest in

determining an appropriate disposition of any petition to terminate parental rights." In re

Cunningham, 59 Ohio St.2d 100, 106 (1979).


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        {¶ 18} Here, the juvenile court made findings as to each of these factors. First, the

juvenile court discussed M.A.'s interaction and interrelationship with appellant and the foster

caregiver. The juvenile court found that it was clear appellant loved M.A. Notwithstanding

that affection, the juvenile court found that appellant had problems visiting M.A. with several

instances of either arriving late to the scheduled appointment or completely failing to attend.

Moreover, the juvenile court found that M.A. becomes agitated before visits with his parents.

        {¶ 19} This court's review of the record supports the trial court's findings. At the

hearing, appellant admitted that his visitation privileges were suspended at least once and

that he had missed visits because of his incarceration. The record demonstrates that

appellant's visitation appointments were suspended in May 2018 and then later in October

2018. While appellant's visits were reinitiated at the time of the permanent custody hearing,

appellant was required to confirm the visits in advance and report several hours early to the

appointment.     Furthermore, appellant's visitation privileges never progressed beyond

supervised visits.

        {¶ 20} Regarding M.A.'s relationship with the foster caregiver, the juvenile court found

that M.A. is making progress in the foster home and is involved in activities and the family.

The caseworker testified that M.A.'s foster caregiver was conducting preschool equivalent

activities with M.A. and expressed interest in adopting M.A. In addition, M.A.'s ability to

interact and communicate with others has improved since his initial removal from the parents'

home.

        {¶ 21} Second, the juvenile court addressed the wishes of the child. The juvenile court

did not interview M.A. but found that M.A.'s wishes were conveyed through the guardian ad

litem, who recommended BCDJFS be granted permanent custody.

        {¶ 22} Third, the juvenile addressed M.A.'s custodial history. The juvenile court found

that M.A. had been in the custody of BCDJFS for 12 months out of a consecutive 22-month
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period. Specifically, M.A. had been in foster care from the date of adjudication in June 2017

to the filing of the motion for permanent custody in October 2018. Therefore, M.A. had been

in temporary custody for more than 16 months out of a 22-month consecutive period.

        {¶ 23} Fourth, the juvenile court discussed M.A.'s need for legally secure placement.

The juvenile court made several findings as to appellant's suitability for placement. The

juvenile court noted that appellant was employed in the construction industry and provided a

"somewhat confusing testimony about his housing situation," but had stable housing and

employment. As to the other requirements of the case plan, the juvenile court found that

appellant initiated his recommended treatment program following a substance abuse/mental

illness assessment, but discontinued his involvement in that program and failed to participate

in the other available services.          Ultimately, the juvenile court found that "except for

employment and housing, [appellant] has completed no case plan services." Consequently,

the juvenile court found that the only option to provide legally secure permanent placement

was to grant permanent custody to BCDJFS.3

        {¶ 24} At the permanent custody hearing, appellant admitted that during the pendency

of the case he was incarcerated for a period of time and this prevented him from participating

in case plan services. Further, the record shows that appellant had to complete a second

substance abuse/mental illness assessment and new information release authorizations to

obtain new referrals for treatment services because the initial referrals had expired.

        {¶ 25} Although the juvenile court found stable housing, our review of the record

shows that appellant did not confirm his permanent residence. According to appellant, he

lived in three places: his brother's residence, his mother's residence, and "on and off" at the

residence of M.A.'s mother. Thus, his living situation remains similar to the time the initial




3. The juvenile court decided that reunification with M.A.'s mother remained an unsuitable option.
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complaint was filed, a time in which appellant described his residence with M.A. and M.A.'s

mother as also "on and off." Appellant presented no additional evidence to clarify his

housing situation.

       {¶ 26} As to the last R.C. 2151.414(D)(1) best interest factor, the juvenile court found

that none of the R.C. 2151.414(E)(7)-(11) factors applied to appellant.

       {¶ 27} Finally, in addition to the R.C. 2151.414(D)(1) best interest factors, the juvenile

court found that M.A. could not be placed with appellant within a reasonable time. R.C.

2151.414(E) provides that if one of several factors exists then "the court shall enter a finding

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

placed with either parent." In this case, the juvenile court found that R.C. 2151.414(E)(1)

applied, which states:

              Following the placement of the child outside the child's home and
              notwithstanding reasonable case planning and diligent efforts by
              the agency to assist the parents to remedy the problems that
              initially caused the child to be placed outside the home, the
              parent has failed continuously and repeatedly to substantially
              remedy the conditions causing the child to be placed outside the
              child's home. In determining whether the parents have
              substantially remedied those conditions, the court shall consider
              parental utilization of medical, psychiatric, psychological, and
              other social and rehabilitative services and material resources
              that were made available to the parents for the purpose of
              changing parental conduct to allow them to resume and maintain
              parental duties.

       {¶ 28} Here, the juvenile court found that BCDJFS made diligent efforts to assist, but

appellant's repeated failure to participate and complete the substance abuse and mental

health treatment, in addition to the fact that he had "recently" tested positive for

methamphetamine at a drug screening, established that appellant had failed to substantially

remedy the conditions that caused M.A. to be removed from the home. As this court has

previously explained, "the key concern is not whether the parent has successfully completed

the case plan, but whether the parent has substantially remedied the concerns that caused
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the child's removal from the parent's custody." (Emphasis sic.) In re S.M., 12th Dist.

Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 24.

      {¶ 29} Appellant testified that the focus of his case plan's treatment and therapeutic

services was treating substance abuse.         Yet, appellant continued to test positive for

controlled substances. The record shows that appellant tested positive for illicit controlled

substances on 12 out of 13 of the administered drug screenings that occurred from May 2017

to February 2019.      The substance most often identified on these screenings was

amphetamine/methamphetamine, however, as noted above, on some occasions, appellant

tested positive for cocaine or marijuana use. Furthermore, appellant did not "engage" in the

recommended treatment/therapeutic services until November 2018, which is a month after

the motion for permanent custody was filed, and even then, appellant stopped participating in

the services by the end of December 2018. At the permanent custody hearing, appellant

claimed to have attended one more treatment/therapy session shortly before the hearing.

Appellant did not offer an explanation for his substance abuse issues, despite acknowledging

the unfavorable drug screening results.       Consequently, appellant's contention that he

"engaged in all the services during the pendency of the case" belies his actual efforts.

      {¶ 30} Even if we accepted appellant's contention that he "engaged" with the

recommended services:

             the completion of case plan services alone does not equate to, or
             necessitate a finding that the parents have substantially
             remedied the conditions that caused the removal of the child
             from the home.

In re E.B., 12th Dist. Warren Nos. CA2009-10-139 and CA2009-11-146, 2010-Ohio-1122, ¶

30. As this court has previously explained:

             [a] juvenile court "is not required to deny [a] permanent custody
             motion simply based upon the groundless speculation that the
             [parent] might successfully complete her drug treatment, * * * and
             remain drug-free." In re J.C., 4th Dist. No. 07CA834, 2007 Ohio
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              3783, ¶ 25. "[A] parent is afforded a reasonable, not an
              indefinite, period of time to remedy the conditions causing the
              children's removal." In re L.M., 11th Dist. No. 2010-A-0058,
              2011 Ohio 1585, ¶ 50. Although at the time of the permanent
              custody hearing, [the parent] had taken some small steps toward
              recovery and compliance with the case plan, it was too little, too
              late. Further, there is no indication [the parent] has remedied her
              substance abuse problem.

In re A.M.L., 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32. As in In re A.M.L.,

here, appellant's limited compliance was too late and insignificant. Moreover, as the juvenile

court found, appellant did not complete his recommended services. Ultimately, the record

shows that appellant did not remedy the conditions causing the initial removal and has not

treated his substance abuse issues. Therefore, it was in the best interest of M.A. for the

juvenile court to grant permanent custody to BCDJFS.

       {¶ 31} In conclusion, BCDJFS presented sufficient evidence at the permanent custody

hearing to clearly and convincingly prove that it was in M.A.'s best interest for BCDJFS to

have permanent custody. After our review of the record, we find the permanent custody

decision was not against the manifest weight of the evidence. Accordingly, both assignments

of error are overruled.

       {¶ 32} Judgment affirmed.


       S. POWELL and RINGLAND, JJ., concur.




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