[Cite as In re L.L., 2020-Ohio-1565.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




IN RE:
                                                            CASE NO. 5-19-33
        L.L.,

ALLEGED ABUSED, NEGLECTED
AND DEPENDENT CHILD.
                                                            OPINION
[BRANDY JOHNSON - APPELLANT]




                 Appeal from Hancock County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 20183001

                                        Judgment Affirmed

                              Date of Decision: April 20, 2020




APPEARANCES:

        Alison Boggs for Appellant

        Wesley R. True for Appellee
Case No. 5-19-33


PRESTON, J.

        {¶1} Appellant, Brandy Johnson (“Johnson”), appeals the August 26, 2019

judgment of the Hancock County Court of Common Pleas, Juvenile Division

granting permanent custody of Johnson’s daughter, L.L., to the Hancock County

Department of Job and Family Services Children’s Protective Services Unit

(“CPSU”). For the reasons that follow, we affirm.

        {¶2} Johnson and Zachary Lanning (“Lanning”) are the biological parents of

L.L. When L.L. was born on January 27, 2018, she tested positive for opiates and

cocaine. (Doc. No. 1). On January 30, 2018, CPSU filed a complaint alleging that

L.L. was an abused, neglected, and dependent child. (Id.). That same day, CPSU

filed a motion requesting that the trial court grant emergency temporary custody of

L.L. to CPSU. (Id.). Following a hearing on February 1, 2018, the trial court

granted CPSU’s motion, and L.L. was placed in the emergency temporary custody

of CPSU. (Doc. No. 11). On February 13, 2018, the trial court appointed a guardian

ad litem (“GAL”) for L.L.1 (Doc. No. 13).

        {¶3} At a hearing on March 15, 2018, L.L. was adjudicated abused,

neglected, and dependent. (Doc. No. 17). Following a dispositional hearing on

April 12, 2018, the trial court determined that L.L. would remain in the temporary

custody of CPSU. (Doc. No. 20).


1
  The trial court later permitted this GAL to withdraw from the case. (Doc. No. 53). On November 14, 2018,
the trial court appointed a new GAL for L.L. (Id.).

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       {¶4} On May 8, 2018, CPSU filed a motion for contempt. (Doc. No. 22). In

its motion, CPSU asked the trial court to hold Johnson in contempt because Johnson

failed to appear for nine random drug screens. (Id.).

       {¶5} Beginning in May 2018, Johnson was repeatedly hospitalized for a

number of health issues, including endocarditis. (Aug. 16, 2019 Tr. at 116). In July

2018, Johnson was required to undergo open-heart surgery. (Id. at 56, 131).

Following her surgery, Johnson was admitted into a nursing home, where she

remained until September 2018. (Id. at 39, 133-134). Johnson attributed her health

problems to her previous use of intravenous drugs. (Id. at 104, 117).

       {¶6} Due in part to Johnson’s hospitalizations, a hearing on CPSU’s motion

for contempt was not held until October 4, 2018, at which time the trial court found

Johnson to be in contempt of court. (Doc. No. 50). On November 20, 2018,

Johnson, having failed to purge the contempt, was committed to the Hancock

County Justice Center for 30 days. (Doc. No. 58). In addition, in late November

2018, Johnson began serving a 180-day jail sentence in the Hancock County Justice

Center for a theft charge from 2017. (Aug. 16, 2019 Tr. at 43-44, 80, 134). Johnson

was released from jail in late May 2019. (Id. at 117).

       {¶7} On February 1, 2019, CPSU filed a motion for permanent custody of

L.L. (Doc. No. 64). The GAL filed her report on June 21, 2019. (Doc. No. 84). A

permanent custody hearing was held on August 16, 2019. (Aug. 16, 2019 Tr. at 1);


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(Doc. No. 89). On August 26, 2019, the trial court granted CPSU’s motion for

permanent custody and awarded permanent custody of L.L. to CPSU. (Doc. No.

89).

        {¶8} On September 18, 2019, Johnson filed a notice of appeal.2 (Doc. No.

95). She raises three assignments of error for our review. Because her assignments

of error concern related issues, we will address them together.

                                  Assignment of Error No. I

        The trial court’s decision granting permanent custody was
        against the manifest weight of the evidence and amounted to an
        abuse of discretion.

                                 Assignment of Error No. II

        The agency failed to use reasonable efforts to reunify Miss
        Johnson with her daughter.

                                 Assignment of Error No. III

        The agency did not prove by clear and convincing evidence that
        Miss Johnson abandoned her child, as contemplated by the
        statute.

        {¶9} In her assignments of error, Johnson argues that the trial court erred by

awarding permanent custody of L.L. to CPSU. Specifically, in her first assignment

of error, Johnson argues that clear and convincing evidence does not support either

the trial court’s determination that one or more of the R.C. 2151.414(B)(1)(a)-(e)



2
 Lanning is not a party to this appeal. Prior to the permanent custody hearing, Lanning consented to the
grant of permanent custody to CPSU. (See Doc. No. 76).

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Case No. 5-19-33


factors apply or its determination that granting permanent custody of L.L. to CPSU

is in L.L.’s best interest. (Appellant’s Brief at 8-16). In her second assignment of

error, Johnson argues that the trial court erred by concluding that CPSU used

reasonable efforts to reunify her with L.L. (Id. at 16-19). In particular, Johnson

argues that the record does not support that CPSU “had reasonable case planning

and used any effort, let alone diligent effort, to help [her] with the completion of the

case plan.” (Id. at 17). See R.C. 2151.414(E)(1). Finally, in her third assignment

of error, Johnson argues that the trial court erred by concluding that L.L. is an

abandoned child. (Appellant’s Brief at 19-24). She contends that she rebutted any

presumption of abandonment by showing that the “time frames relied upon by the

court to justify finding she abandoned [L.L.] were the times she was hospitalized

for major open-heart surgery and while she was in jail.” (Id. at 20).

       {¶10} The right to raise one’s child is a basic and essential right. In re

Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,

92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625

(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not

absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶ 7. These

rights may be terminated under appropriate circumstances and when the trial court


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Case No. 5-19-33


has met all due process requirements. In re Leveck, 3d Dist. Hancock Nos. 5-02-

52, 5-02-53 and 5-02-54, 2003-Ohio-1269, ¶ 6.

       {¶11} “R.C. 2151.414 outlines the procedures that protect the interests of

parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.

Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re

B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for

permanent custody of a child, the trial court must comply with the statutory

requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,

2015-Ohio-2740, ¶ 13, citing In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-

03, 2009-Ohio-6027, ¶ 14. “R.C. 2151.414(B)(1) establishes a two-part test for

courts to apply when determining whether to grant a motion for permanent custody:

(1) the trial court must find that one of the circumstances in R.C. 2151.414(B)(1)(a)-

(e) applies, and (2) the trial court must find that permanent custody is in the best

interest of the child.” In re Y.W., 3d Dist. Allen No. 1-16-60, 2017-Ohio-4218, ¶

10, citing In re S.G., 9th Dist. Wayne No. 15AP0005, 2015-Ohio-2306, ¶ 10 and In

re Brown, 98 Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides,

in relevant part, that a trial court

       may grant permanent custody of a child to a movant if the court

       determines at the hearing held pursuant to [R.C. 2151.414(A)], by

       clear and convincing evidence, that it is in the best interest of the child


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       to grant permanent custody of the child to the agency that filed the

       motion for permanent custody and that any of the following apply:

       (a) The child is not abandoned or orphaned, has not 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 the child cannot be

       placed with either of the child’s parents within a reasonable time or

       should not be placed with the child’s parents.

       (b) The child is abandoned.

R.C. 2151.414(B)(1)(a)-(b). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f

one or more of the factors enumerated in R.C. 2151.414(E) is found to be present

by clear and convincing evidence, the trial court shall find that the child cannot be

placed with the parents within a reasonable period of time or should not be placed

with the parents.’” In re A.M. at ¶ 13, quoting In re A.F., 3d Dist. Marion No. 9-11-

27, 2012-Ohio-1137, ¶ 54, citing In re Goodwin, 3d Dist. Shelby No. 17-08-12,

2008-Ohio-5399, ¶ 23.

       {¶12} As relevant to the resolution of this case, R.C. 2151.414(E) provides:

       In determining at a hearing held pursuant to [R.C. 2151.414(A)] * * *

       whether a child cannot be placed with either parent within a

       reasonable period of time or should not be placed with the parents, the


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         court shall consider all relevant evidence. If the court determines, by

         clear and convincing evidence, at a hearing held pursuant to [R.C.

         2151.414(A)] * * * that one or more of the following exist as to each

         of the child’s parents, 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:

         (1) 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.

R.C. 2151.414(E)(1).3


3
  In this case, although the trial court also made findings under R.C. 2151.414(E)(2), (4), (10), and (11), the
trial court’s findings under those divisions are only minimally relevant to our determination of Johnson’s

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        {¶13} “‘If the trial court determines that any provision enumerated in R.C.

2151.414(B)(1) applies,’ it must proceed to the second prong of the test, which

requires the trial court to ‘determine, by clear and convincing evidence, whether

granting the agency permanent custody of the child is in the child’s best interest.’”

In re K.M.S., 3d Dist. Marion Nos. 9-15-37, 9-15-38 and 9-15-39, 2017-Ohio-142,

¶ 23, quoting In re A.F. at ¶ 55 and citing R.C. 2151.414(B)(1). “The best interest

determination is based on an analysis of R.C. 2151.414(D).” Id.

        {¶14} “Under R.C. 2151.414(D)(1), the trial court is required to consider all

relevant factors listed in that subdivision, as well as any other relevant factors.” Id.

at ¶ 24, citing In re H.M., 3d Dist. Logan Nos. 8-13-11, 8-13-12 and 8-13-13, 2014-

Ohio-755, ¶ 27. The R.C. 2151.414(D)(1) factors include:

        (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;




assignments of error. (Doc. No. 89). Thus, for the sake of brevity, we will not reproduce those divisions
here.

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Case No. 5-19-33


       (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;

       (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). “Under this test, the trial court considers the totality of the

circumstances when making its best interest determinations. No single factor is

given more weight than others.” In re N.R.S, 2018-Ohio-125, at ¶ 16, citing In re

Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.

       {¶15} If the trial court makes these statutorily required determinations, a

reviewing court will not reverse a trial court’s decision unless it is not supported by

clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and

16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d

Dist.1994), citing In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985) and In

re Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence

is that which is sufficient to produce in the mind of the trier of fact a firm belief or


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conviction as to the facts sought to be established.” In re S.G., 2015-Ohio-2306, at

¶ 10, citing Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

       {¶16} For ease of discussion, we will consider Johnson’s assignments of

error out of order, beginning with her third assignment of error. In her third

assignment of error, Johnson argues that clear and convincing evidence does not

support the trial court’s determination under R.C. 2151.414(B)(1)(b) that L.L. is

abandoned. “For the purposes of [R.C. Chapter 2151], a child shall be presumed

abandoned when the parents of the child have failed to visit or maintain contact with

the child for more than ninety days, regardless of whether the parents resume contact

with the child after that period of ninety days.” R.C. 2151.011(C). Numerous

courts, including this one, have determined that R.C. 2151.011(C) creates a

presumption of abandonment, which may be rebutted by the parents. E.g., In re

L.M., 6th Dist. Lucas No. L-16-1212, 2017-Ohio-610, ¶ 28, citing In re S.B., 183

Ohio App.3d 300, 2009-Ohio-3619, ¶ 33 (10th Dist.); In re M.J., 2d Dist. Greene

Nos. 2014-CA-32 and 2014-CA-33, 2015-Ohio-127, ¶ 33; In re D.K., 3d Dist. Allen

No. 1-09-16, 2009-Ohio-5438, ¶ 25, citing In re Cravens, 3d Dist. Defiance No. 4-

03-48, 2004-Ohio-2356, ¶ 23.

       {¶17} With respect to whether Johnson abandoned L.L., the trial court found:




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       [Johnson] has, on two occasions, met the abandonment standard

       outlined in R.C. §2151.011(C). [Johnson] failed to visit with [L.L.]

       in April, May, June, July, and August 2018. Likewise she failed to

       visit with [L.L.] in October, November, [and] December 2018 and [in]

       January, February, March, April and May of 2019. Much argument

       was made by [Johnson’s] counsel that she was unable to visit due to

       medical issues and being in jail. Even if the Court were [to] accept

       this argument, there were many months when she was not ill and not

       in jail and still failed to visit the child. [Johnson] testified that her

       illness was a result of drug use. When she was released from the

       hospital, she did not immediately go to reinitiate visits, she instead

       began again using drugs. Furthermore, her jail time was imposed as

       a result of wrongdoing on her part. * * * When her sentence was

       completed, she, again, did not reinitiate visits. She instead used

       cocaine and eventually entered residential treatment after it was

       suggested by her adult probation officer. The Court finds by clear and

       convincing evidence that [L.L.] is abandoned * * *.

(Doc. No. 89).

       {¶18} After reviewing the record, we conclude that clear and convincing

evidence supports the trial court’s determination that L.L. is abandoned. The record


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reflects that from February 2018, when L.L. was removed from Johnson’s custody,

until late May 2019, when Johnson was released from jail, Johnson had a total of

three visits with L.L.—in February, March, and September 2018. (Aug. 16, 2019

Tr. at 16-17, 58, 118-119, 132). Thus, the record supports the trial court’s finding

that Johnson failed to visit with L.L. between April 2018 and August 2018 and

between October 2018 and May 2019. Furthermore, while the record supports that

Johnson had inconsistent communications with CPSU caseworkers during her

hospitalizations and nursing home stay, it does not contain any evidence suggesting

that Johnson otherwise attempted to maintain contact with L.L. (See id. at 132).

Therefore, CPSU presented ample evidence demonstrating that Johnson twice went

more than 90 days without visiting or maintaining contact with L.L., thus raising

R.C. 2151.011(C)’s presumption of abandonment.

       {¶19} Though Johnson appears to acknowledge that CPSU produced enough

evidence to raise the presumption of abandonment, she argues that she rebutted the

presumption of abandonment because evidence was presented establishing that the

gaps in visitation and contact were attributable to her poor health, hospitalizations,

and incarceration—none of which, according to Johnson, demonstrates that she

intended to abandon L.L. (Appellant’s Brief at 20-24). In addition, concerning the

gap in visitation Johnson imputes to her poor health and hospitalizations, she

contends that her “actions of reaching out to the agency when she was able * * *


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indicat[es] that her absence from L.L.’s life was not because she desired to sever

ties with her daughter.” (Id. at 22).

       {¶20} Johnson’s arguments are without merit. Even assuming that Johnson’s

limited contacts with CPSU caseworkers during her hospitalizations and nursing

home stay are sufficient to rebut the presumption of abandonment created by her

failure to visit or maintain contact with L.L. from April 2018 through August 2018,

insufficient evidence was presented to rebut the presumption of abandonment raised

by Johnson’s failure to visit or maintain contact with L.L. from October 2018

through May 2019. First, the record reflects that Johnson’s failure to visit or contact

L.L. during this period was not caused entirely by her incarceration. During the

approximately two-month period between September 2018, when she was

discharged from the nursing home, and late November 2018, when she was

incarcerated, Johnson was completely free to visit or contact L.L. and healthy

enough to do so. Yet, rather than attempting visitation or contact with L.L., Johnson

testified that after visiting with L.L. in September 2018, she resumed some of her

old habits. (Aug. 16, 2019 Tr. at 132-134). Thus, Johnson’s incarceration cannot

account for her failure to visit or contact L.L. for the entirety of October 2018 and

most of November 2018. Furthermore, the record does not contain any evidence

that Johnson requested visitation with L.L. during her incarceration or that she

otherwise tried to maintain contact, and by itself, Johnson’s incarceration, the


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consequence of her own voluntary actions, does not excuse her failure to visit or

maintain contact with L.L. from October 2018 through May 2019. In re H.J., 11th

Dist. Ashtabula No. 2017-A-0068, 2018-Ohio-206, ¶ 22, citing In re Bailey

Children, 5th Dist. Stark No. 2004 CA 00386, 2005-Ohio-2981, ¶ 32; In re L.M.,

2017-Ohio-610, at ¶ 29-31; In re C.B., 4th Dist. Highland No. 16CA22, 2016-Ohio-

8293, ¶ 21-24; In re W.H., 5th Dist. Stark No. 2015CA00131, 2015-Ohio-4360, ¶

14, citing In re Wright, 5th Dist. Stark No. 2003CA00347, 2004-Ohio-1094, ¶ 15-

19; In re M.J., 2015-Ohio-127, at ¶ 36-42. Finally, although the record reflects that

Johnson restarted visitations with L.L. following her release from jail, the

presumption of abandonment “is not rebutted by evidence that the parents resumed

contact with the child after [the 90-day period] had expired.” In re C.B. at ¶ 23,

citing In re S.B., 183 Ohio App.3d 300, 2009-Ohio-3619, at ¶ 33-35, citing In re

Wright at ¶ 19-20; R.C. 2151.011(C). Accordingly, we conclude that clear and

convincing evidence supports the trial court’s determination pursuant to R.C.

2151.414(B)(1)(b) that L.L. is abandoned.

       {¶21} Next, we consider Johnson’s second assignment of error, in which she

argues that CPSU failed to prove that it used reasonable efforts to reunify her with

L.L.   At the outset, we note that while Johnson repeatedly uses the phrase

“reasonable efforts” throughout her second assignment of error, she continually

cites to R.C. 2151.414(E)(1), which does not use the phrase “reasonable efforts.”


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(See Appellant’s Brief at 16-19). Instead, when applicable, R.C. 2151.414(E)(1)

directs the trial court to consider whether a children services agency has offered

“reasonable case planning and diligent efforts * * * to assist the parents to remedy

the problems that initially caused the child to be placed outside the home * * *.” In

this case, the trial court used R.C. 2151.414(E)(1) as a basis for its determination

under R.C. 2151.414(B)(1)(a) that L.L. cannot be placed with Johnson within a

reasonable time or should not be placed with Johnson.4 (Doc. No. 89).

        {¶22} However, in light of our resolution of Johnson’s third assignment of

error, we need not consider whether the trial court’s R.C. 2151.414(E)(1) findings

are supported by the record. “The factors contained within R.C. 2151.414(B)(1)(a)-

(e) are alternative findings, and only one must be met in order for the first prong of

the permanent custody test to be satisfied.” In re S.G., 2015-Ohio-2306, at ¶ 11,

citing In re M.M., 9th Dist. Lorain Nos. 10CA009744, 10CA009745, 10CA009746

and 10CA009747, 2010-Ohio-2278, ¶ 12. Here, the trial court made determinations

under both R.C. 2151.414(B)(1)(a) and 2151.414(B)(1)(b), and as discussed above,

the trial court’s determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned

is supported by clear and convincing evidence. Therefore, because the trial court’s

determination under R.C. 2151.414(B)(1)(b) supplies an independently sufficient

basis for granting CPSU’s motion for permanent custody, it is immaterial whether


4
  As indicated above, the trial court also made findings under R.C. 2151.414(E)(2), (4), (10), and (11) to
support its determination under R.C. 2151.414(B)(1)(a). (Doc. No. 89).

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the trial court’s R.C. 2151.414(E)(1) findings, which support its R.C.

2151.414(B)(1)(a) determination, are supported by the record. See In re A.H., 9th

Dist. Lorain No. 13CA010454, 2014-Ohio-552, ¶ 9 (“Because the ‘12 of 22’ finding

was sufficient to support the first prong of the permanent custody test, any error in

the trial court’s alternate finding under R.C. 2151.414(E) would not constitute

reversible error because it did not result in any prejudice * * *.”), citing In re R.H.,

9th Dist. Lorain Nos. 11CA010002 and 11CA010003, 2011-Ohio-6749, ¶ 14; In re

Franklin, 3d Dist. Marion Nos. 9-06-12 and 9-06-13, 2006-Ohio-4841, ¶ 14-16.

       {¶23} Moreover, to the extent that Johnson argues in her second assignment

of error that the grant of permanent custody was improper because CPSU failed to

demonstrate that it used “reasonable efforts” as required by other sections of R.C.

Chapter 2151, Johnson’s argument is misplaced. “[V]arious sections of the Revised

Code refer to the agency’s duty to make reasonable efforts to preserve or reunify

the family unit,” most notably R.C. 2151.419. In re C.F., 113 Ohio St.3d 73, 2007-

Ohio-1104, ¶ 29. Under R.C. 2151.419, when a trial court

       removes a child from the child’s home or continues the removal of a

       child from the child’s home, the court shall determine whether the

       public children services agency * * * has made reasonable efforts to

       prevent the removal of the child from the child’s home, to eliminate




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       the continued removal of the child from the child’s home, or to make

       it possible for the child to return safely home.

R.C. 2151.419(A)(1).       R.C. 2151.419(A)(1) applies only at “‘adjudicatory,

emergency, detention, and temporary disposition hearings, and dispositional

hearings for abused, neglected, or dependent children * * *.’” In re N.R.S., 2018-

Ohio-125, at ¶ 25, quoting In re C.F. at ¶ 41. R.C. 2151.419(A)(1) “makes no

reference to a hearing on a motion for permanent custody. Therefore, ‘[b]y its plain

terms, the statute does not apply to motions for permanent custody brought pursuant

to R.C. 2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.’”

In re C.F. at ¶ 41, quoting In re A.C., 12th Dist. Clermont No. CA2004-05-041,

2004-Ohio-5531, ¶ 30. However, this does not relieve children services agencies of

the duty to use reasonable efforts. Id. at ¶ 42. “If [an] agency has not established

that reasonable efforts have been made prior to the hearing on a motion for

permanent custody, then it must demonstrate such efforts at that time.” Id. at ¶ 43.

       {¶24} In this case, the trial court made reasonable-efforts findings on three

occasions prior to the permanent-custody hearing: at the hearing before CPSU was

granted emergency temporary custody of L.L., at the dispositional hearing, and in a

March 29, 2019 judgment entry specially finding that CPSU used reasonable efforts.

(Doc. Nos. 11, 20, 79). Johnson does not argue that the trial court’s previous

reasonable-efforts findings are unsupported by the record.          (See generally


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Appellant’s Brief at 16-19). In sum, because the trial court previously made

reasonable-efforts findings, CPSU was not required to prove, nor was the trial court

required to find, that CPSU used reasonable efforts to reunify Johnson with L.L.

before the trial court could grant permanent custody of L.L. to CPSU. In re T.A.M.,

3d Dist. Crawford No. 3-18-13, 2018-Ohio-5058, ¶ 16.

       {¶25} Finally, we address Johnson’s first assignment of error. In her first

assignment of error, Johnson argues that clear and convincing evidence does not

support the trial court’s determinations under R.C. 2151.414(B)(1)(a) and (b) or its

determination that granting permanent custody of L.L. to CPSU is in L.L.’s best

interest. (Appellant’s Brief at 8-16). Under Johnson’s third assignment of error, we

concluded that clear and convincing evidence supports the trial court’s

determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned. Furthermore,

as explained under Johnson’s second assignment of error, we do not need to

examine whether the trial court’s R.C. 2151.414(B)(1)(a) determination is

supported by the record. As a result, we consider only whether the trial court’s best-

interest findings are supported by clear and convincing evidence.

       {¶26} With respect to L.L.’s best interest, the trial court found:

       The Court has considered the interaction and interrelationship of

       [L.L.] with [L.L.’s] parents, siblings, relatives and foster caregivers.

       [L.L.] has been in the same foster home since she was released from


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       the hospital after birth. [L.L.] has an established relationship with her

       sister, C.W., due to the efforts of the foster mother in continuing visits

       with the family that is raising C.W.         [L.L.] has no established

       relationship with [Johnson] * * * due to the lack of visits attended by

       [Johnson] * * * over the past many months.                Karmen Lauth

       [(“Lauth”)] testified that [L.L.] is in need of a legally secure and

       permanent placement which cannot be achieved unless permanent

       custody is granted. Also, * * * the Court has considered that the

       factors outlined in R.C. 2151.414(E)(10) and (11) exist in this case.

       Accordingly, the Court finds by clear and convincing evidence that it

       is in [L.L.’s] best interest to grant CPSU’s motion for permanent

       custody.

(Doc. No. 89).

       {¶27} After reviewing the record, we conclude that clear and convincing

evidence supports the trial court’s determination that it is in the best interest of L.L.

to grant permanent custody of L.L. to CPSU. First, it is clear that, pursuant to R.C.

2151.414(D)(1)(a), the trial court considered L.L.’s interaction and interrelationship

with her relatives and foster caregivers, and the record supports the trial court’s

findings under R.C. 2151.414(D)(1)(a). At the permanent custody hearing, Lauth

testified that L.L. has been placed with the same foster mother since she was initially


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removed from Johnson’s custody. (Aug. 16, 2019 Tr. at 64). Lauth stated that L.L.

“knows no other parent than her foster parent” and that L.L. is “quite bonded” with

her foster mother. (Id.). Moreover, the record supports that L.L.’s foster mother

has attempted to facilitate relationships with L.L.’s siblings and other family

members.        Lauth testified that L.L.’s foster mother “has facilitated a family

relationship” with L.L.’s paternal relatives and that L.L. “sees one of her half

siblings when she visits with her paternal grandmother.” (Id. at 60). According to

Lauth, L.L. sees her paternal grandmother “fairly regularly.” (Id. at 61). Lauth also

stated that L.L.’s foster mother had “reached out to the other half sibling who was

recently adopted and would like to facilitate a sibling relationship with that child as

well.”5 (Id. at 61).

         {¶28} In addition, the record establishes that Johnson does not have a strong

relationship with L.L. While the testimony showed that Johnson’s few visitations

with L.L. were “appropriate,” Lauth remarked that L.L. “does not know [Johnson]

as her mother.” (Id. at 18-19, 60, 182). She stated that Johnson made “[v]ery little”

progress in developing a relationship and forming a bond with L.L. (Id. at 53-54).

Therefore, the trial court’s findings about L.L.’s interaction and interrelationship



5
  Lauth is likely referring to Johnson’s other child, C.W., in this statement. The record reflects that Lanning
is not the father of C.W. (See Doc. No. 1). As a result, it is likely that Lauth was not referring to C.W. when
she testified to L.L.’s established relationship with her paternal half-sibling. Although the trial court might
have mistakenly found that L.L. has an established relationship with C.W., the record still supports that L.L.
has a longstanding relationship with one of her siblings and that L.L.’s foster mother is making an effort to
establish a relationship with L.L.’s other sibling.

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with her relatives and foster caregivers are supported by the record, and this factor

clearly weighs in favor of granting permanent custody to CPSU. See In re C.J.P.,

10th Dist. Franklin No. 08AP-665, 2009-Ohio-1552, ¶ 10-13; In re Adams, 3d Dist.

Seneca No. 13-04-27, 2004-Ohio-7039, ¶ 19.

       {¶29} Although the trial court did not make any specific findings under R.C.

2151.414(D)(1)(b), which obligates the trial court to consider the wishes of the

child, this does not call the trial court’s permanent-custody determination into

question. At the time of the permanent custody hearing, L.L. was not yet 19 months

old, and as confirmed by the GAL in her report, “[d]ue to [L.L.’s] age, she [was]

unable to voice her wishes.” (Doc. No. 84). In her report, the GAL recommended

that CPSU be awarded permanent custody of L.L. (Id.). From the trial court’s

judgment entry, it is clear both that the trial court was aware of the GAL’s report

and that the trial court considered the relevancy of R.C. 2151.414(D)(1)(b). (See

Doc. No. 89). Thus, under the circumstances of this case, we are satisfied that the

trial court adequately considered L.L.’s wishes as expressed through L.L.’s GAL,

and this factor supports the grant of permanent custody. See In re N.S.N., 4th Dist.

Washington Nos. 15CA6, 15CA7, 15CA8 and 15CA9, 2015-Ohio-2486, ¶ 38-40

(finding no error where trial court stated that it had considered “‘all relevant

evidence and factors,’” but omitted a specific discussion of R.C. 2151.414(D)(1)(b),

because it appeared that the trial court “considered R.C. 2151.414(D)(1)(b) but


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determined that the children were too young or immature to directly express their

wishes”); In re Haller, 3d Dist. Wyandot No. 16-08-16, 2009-Ohio-545, ¶ 17

(noting that a child’s wishes may be ascertained from the GAL’s report and

recommendation, especially where the child is “of tender years” or developmentally

delayed).

       {¶30} Regarding R.C. 2151.414(D)(1)(c), which requires the trial court to

consider the child’s custodial history, we believe that the trial court properly

considered L.L.’s custodial history. In its conclusion, the trial court stated that its

best-interest determination was made in consideration of “the relevant factors

herein, including those as set forth in R.C. 2151.414(D)(1)(a)-(e) * * *.” (Doc. No.

89). This statement “indicates that the court was aware of and considered all of the

factors outlined in R.C. 2151.414(D)(1),” including L.L.’s custodial history. In re

N.S.N. at ¶ 38. In addition, the trial court’s finding that L.L. “has been in the same

foster home since she was released from the hospital after birth” appears to reflect

the trial court’s consideration of L.L.’s custodial history. (Doc. No. 89). The record

clearly and convincingly establishes that L.L. has been in the custody of CPSU for

nearly her entire life. L.L. was placed in the emergency temporary custody of CPSU

only days after her birth and has remained in the custody of CPSU ever since. When

CPSU filed its motion for permanent custody, L.L. had been in the temporary

custody of CPSU for nearly a year, and by the time of the permanent custody


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hearing, L.L. had been in CPSU’s custody for well over a year and a half. The fact

that L.L. has been in CPSU’s temporary custody for most of her short life supports

the grant of permanent custody to CPSU. See In re R.S., 4th Dist. Highland No.

13CA22, 2013-Ohio-5569, ¶ 44, 47 (holding that the trial court’s grant of permanent

custody was supported by the fact that the child “has spent his entire life in [the

agency’s] temporary custody,” “remained in the same foster home throughout that

time,” and “has not spent a single day in appellant’s custody”).

       {¶31} Next, we consider whether the trial court’s findings under R.C.

2151.414(D)(1)(d), which requires the trial court to consider the child’s need for a

legally secure permanent placement and whether that type of placement can be

achieved without granting permanent custody, are supported by clear and

convincing evidence. At the permanent custody hearing, Lauth detailed the efforts

CPSU used to determine whether L.L. could be placed with a family friend or one

of her relatives. According to Lauth, CPSU conducted “three home studies to

explore relatives and kin.” (Aug. 16, 2019 Tr. at 62). However, all possible kinship

placements were ruled out after study and vetting. (Id. at 63-64). In addition, L.L.’s

paternal grandmother, with whom L.L. has a relationship, insisted that she did not

want custody of L.L. and would prefer to maintain a grandparent-grandchild

relationship. (Id. at 61).




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       {¶32} Additionally, CPSU presented evidence that Johnson would not be

capable of providing L.L. with a legally secure permanent placement in the

foreseeable future, and Johnson did little to rebut CPSU’s evidence. First, CPSU

presented evidence that raised the possibility that Johnson’s problems with

substance abuse might still impair her ability to provide a stable home environment

for L.L. Johnson acknowledged that after being released from jail, she tested

positive for cocaine. (Id. at 112). She maintained that she only used cocaine

because she mistakenly believed that she needed to test positive for drugs in order

to be admitted into a particular rehabilitation center. (Id. at 139). However, CPSU

provided evidence demonstrating that Johnson did not need to be an active user of

drugs to be admitted into the facility, and Johnson conceded that she did not call the

facility in advance to inquire about their admissions criteria. (Id. at 162, 177). In

addition, Lauth testified that Johnson tested positive for THC just days before the

permanent custody hearing. (Id. at 52, 59). Although Johnson presented evidence

that two subsequent drug screens, one conducted a day after Johnson tested positive

and one conducted the day of the permanent custody hearing, came back negative

for THC, the positive drug screen nevertheless raises the concern that Johnson is

still using drugs.

       {¶33} CPSU also presented evidence that Johnson would likely be unable to

provide L.L. with safe, stable housing. Lauth testified that, to her knowledge,


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Johnson has never been able to establish safe and stable housing as an adult. (Id. at

98). Both Lauth and Johnson testified that, as of the date of the permanent custody

hearing, Johnson was living with Johnson’s mother. (Id. at 53, 60, 109-110). Lauth

testified that CPSU believed that it was not appropriate for L.L. to live with

Johnson’s mother due to Johnson’s mother’s extensive history of drug abuse, though

Johnson testified that her mother had been clean for some time in 2019. (Id. at 53,

60, 110-111). Lauth further testified that there were safer housing options available

for Johnson at City Mission and that children under CPSU’s supervision had

previously lived with their parents at City Mission, but that Johnson had not taken

advantage of that opportunity. (Id. at 102-103). Johnson testified that she was

offered “sober living” after being discharged from the rehabilitation center, but that

she declined that offer. (Id. at 112-113). However, Johnson testified that she

intended to submit an application to a new independent sober living development,

but she acknowledged that the application had not yet been completed. (Id. at 149-

150). In addition, there was no evidence presented that Johnson would have been

capable of providing for L.L. financially within a reasonable time. Johnson testified

that, at the time of the permanent custody hearing, she was not employed, but she

stated that she desired to work. (Id. at 121-122). She stated that she was filling out

job applications and that she was considering applying for social security benefits

due to her heart condition. (Id. at 121-122).


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       {¶34} Lastly, Lauth testified directly to L.L.’s need for a legally secure

permanent placement and offered her opinion regarding whether that type of

placement could be achieved without a grant of permanent custody to CPSU. Lauth

testified that L.L. had “been in the foster home during the entirety of the case and

she needs a permanent home in which to grow.” (Aug. 16, 2019 Tr. at 35). Lauth

testified that L.L. is in need of a legally secure permanent placement and that she

did not believe that that placement could be accomplished without permanent

custody being granted. (Id. at 62-63). Lauth further stated that she believed that

permanent custody was the “least restrictive” means of providing L.L. with stability,

that L.L. needed a “permanent, safe, [and] loving home in which to grow,” and that,

ultimately, adoption by the foster parent would “greatly benefit” L.L. (Id. at 65-

66). Thus, we conclude that the record supports the trial court’s determination under

R.C. 2151.414(D)(1)(d) that L.L. is in need of a legally secure permanent placement

and that this type of placement cannot be accomplished without granting permanent

custody of L.L. to CPSU.

       {¶35} Finally, the record supports the trial court’s finding that two of the

factors in R.C. 2151.414(E)(7) to (11), R.C. 2151.414(E)(10) and (11), apply in

relation to Johnson and L.L. See R.C. 2151.414(D)(1)(e). We first consider R.C.

2151.414(E)(10). R.C. 2151.414(E)(10) asks the trial court to consider whether the

parent has abandoned the child. As explained under Johnson’s third assignment of


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error, there is clear and convincing evidence supporting the trial court’s

determination under R.C. 2151.414(B)(1)(b) that L.L. is abandoned. Accordingly,

the record also supports the trial court’s determination under R.C. 2151.414(E)(10)

that Johnson abandoned L.L.

       {¶36} Moreover, there is clear and convincing evidence supporting the trial

court’s determination that R.C. 2151.414(E)(11) applies.              Under R.C.

2151.414(E)(11), the trial court should consider whether “[t]he parent has had

parental rights involuntarily terminated with respect to a sibling of the child” and

whether “the parent has failed to provide clear and convincing evidence to prove

that, notwithstanding the prior termination, the parent can provide a legally secure

permanent placement and adequate care for the health, welfare, and safety of the

child.” At the permanent custody hearing, the trial court heard evidence that

Johnson’s parental rights to her other biological daughter, C.W., were terminated

less than two weeks before L.L.’s birth. (Aug. 16, 2019 Tr. at 35-36, 123-124);

(CPSU’s Ex. 3). Furthermore, as discussed in our examination of the trial court’s

findings under R.C. 2151.414(D)(1)(d), Johnson failed to prove that she could

provide a legally secure permanent placement for L.L. As a result, the record

supports the trial court’s determination concerning the applicability of R.C.

2151.414(E)(11).




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       {¶37} In light of the foregoing, we conclude that clear and convincing

evidence supports the trial court’s determination under R.C. 2151.414(B)(1)(b) that

L.L. is abandoned. We also conclude that clear and convincing evidence supports

the trial court’s determination that granting permanent custody of L.L. to CPSU is

in L.L.’s best interest. Therefore, we conclude that the trial court did not err by

granting permanent custody of L.L. to CPSU.

       {¶38} Johnson’s first, second, and third assignments of error are overruled.

       {¶39} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

SHAW, P.J., concurs.

/jlr



WILLAMOWSKI, J., concurring separately.

       {¶40} I am writing separately because although I concur with the conclusion

of the majority, I fully agree with the reasoning of the majority except as to part of

the third assignment of error upholding the finding that the child was abandoned.

The record is clear that for a portion of the time that Johnson did not have contact

with the child, she was in a hospital for treatment. Although the trial court found

that the hospitalization was due to Johnson’s voluntary drug usage, I would not


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count that time against Johnson. I do not want to set a precedent that time being

treated for an illness, regardless of what caused the illness, should be counted as

part of an abandonment calculation. Public policy would encourage one, especially

a parent, to seek whatever medical treatment they require without concern that it

would be used against them in a court proceeding to terminate parental rights. The

finding regarding seeking medical treatment was unnecessary to the trial court’s

final determination that the child was abandoned. The trial court also had a period

of time where there was no contact for over 90 days while Johnson was in jail. The

failure to maintain contact while in jail was a voluntary choice. Since that time

lasted more than 90 days, I agree with the majority that the evidence supports the

trial court’s finding that Johnson had abandoned her child by failing to maintain

contact for more than a period of 90 days. For this reason, I am concurring

separately in the judgment.




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