[Cite as In re E.A., 2019-Ohio-2964.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                           WARREN COUNTY




IN RE:                                            :

        E. A.                                     :      CASE NO. CA2019-02-012

                                                  :               OPINION
                                                                   7/22/2019
                                                  :

                                                  :




              APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                              Case No. 16-D000093



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Clouse Law Office, Lauren L. Clouse, 7681 Tylers Place Boulevard, Suite 3, West Chester,
Ohio 45069, for appellant



          RINGLAND, J.

          {¶ 1} Appellant, the biological father of E.A., appeals from a decision of the Warren

County Court of Common Pleas, Juvenile Division, granting permanent custody of E.A. to

appellee, Warren County Children Services ("WCCS"). For the reasons detailed below, we

affirm.

          {¶ 2} Mother tested positive for drugs throughout her pregnancy. On July 2, 2014,
                                                                     Warren CA2019-02-012

E.A. was born and tested positive for drugs. As a result, E.A. was placed in the temporary

custody of WCCS while Mother worked towards reunification.

       {¶ 3} There have been seven case plans throughout the pendency of this matter.

The initial case plan included Mother and a different presumed father. However, later genetic

testing confirmed Father's paternity in 2016. Due to the late establishment of paternity,

Father had insufficient time to establish a bond with E.A. and therefore WCCS filed a new

complaint to provide him with additional time to work the case plan.

       {¶ 4} On October 6, 2016, the juvenile court proceeded with an adjudicatory hearing

and E.A. was found to be a dependent child. On October 27, 2016, the juvenile court held a

dispositional hearing and granted temporary custody of E.A. to WCCS.

       {¶ 5} As part of Mother's case plan, she was to submit to random drug screens,

comply with medication-assisted treatment, complete a drug and alcohol assessment,

complete a mental health assessment, refrain from criminal activity, and to obtain and

maintain income to provide for E.A.'s needs.

       {¶ 6} Mother struggled with substance abuse until July 2017 when she successfully

completed a drug treatment program and was succeeding with her case plan. This changed

in September 2018 when Mother relapsed and tested positive for oxycodone. Following the

positive drug screen, Mother stopped responding to the caseworker's phone calls and ceased

interaction with WCCS. Since that time, Mother has not seen or communicated with E.A. and

did not attend the permanent custody hearing. She has not participated in this appeal.

       {¶ 7} When Father's paternity was established, WCCS developed a case plan for

him. As part of his case plan, Father was to complete a mental health assessment and

follow all recommendations, prove that he had stable income, maintain a safe and stable

house, refrain from the use of illegal substances, and refrain from criminal activity.

       {¶ 8} Father completed case plan assessments. The assessments listed no issues
                                             -2-
                                                                      Warren CA2019-02-012

with mental health or substance abuse. Throughout the proceedings Father was employed,

but his housing situation was unverified. At the beginning of the case, Father resided in a

one-bedroom apartment with his girlfriend. However, following separation from his girlfriend,

Father moved in with a friend in July 2016. The caseworker attempted to see that home on

multiple occasions but was ultimately unsuccessful. Father admitted that he could not take

custody of E.A. because his housing, at the time, was inappropriate. Father then moved in

with another friend in October 2016.

        {¶ 9} Father initially exercised supervised visitation with E.A. Father's visitation was

later increased to four hours a week unsupervised in June 2016. Though he was consistent

with visitations in June and July of 2016, he exercised only half of his visits in October and

November 2016. Father cancelled visits on 14 separate occasions. Furthermore, since the

caseworker had not visited his house, she was unable to increase his visitation hours. In

November 2016, Father stopped visiting E.A. regularly. Father last saw E.A. on January 27,

2017.

        {¶ 10} In August 2017, Father attended a court hearing and indicated his desire to re-

engage with the case plan. As a result, the caseworker requested that Father obtain updated

mental health and substance abuse assessments.                Father did not complete the

assessments, claiming that the center cancelled his appointment.

        {¶ 11} On January 18, 2018, WCCS moved for permanent custody. At the permanent

custody hearing, the state presented the testimonies of the two caseworkers assigned to the

case. Father testified on his own behalf. After taking the matter under advisement, the

juvenile court granted permanent custody in favor of WCCS. Father now appeals, raising

three assignments of error for review.

        {¶ 12} Assignment of Error No. 1:

        {¶ 13} THE TRIAL COURT ERRED IN FINDING, BY CLEAR AND CONVINCING
                                               -3-
                                                                     Warren CA2019-02-012

EVIDENCE, THAT THE CHILD COULD NOT BE PLACED WITH FATHER WITHIN A

REASONABLE TIME OR SHOULD NOT BE PLACED WITH HIM, PURSUANT TO R.C.

2151.414(B)(1)(a)-(d).

       {¶ 14} Assignment of Error No. 2:

       {¶ 15} THE TRIAL COURT ERRED IN FINDING, BY CLEAR AND CONVINCING

EVIDENCE, THAT THE MINOR CHILD HAD BEEN ABANDONED BY FATHER PURSUANT

TO R.C. 2151.414(B)(1)(b).

       {¶ 16} Assignment of Error No. 3:

       {¶ 17} THE TRIAL COURT ERRED IN FINDING, BY CLEAR AND CONVINCING

EVIDENCE, THAT THE BEST INTEREST OF THE CHILDREN [sic], PURSUANT TO R.C.

2151.414(D), WAS REACHED BY GRANTING PERMANENT CUSTODY TO WARREN

COUNTY CHILDREN SERVICES.

       {¶ 18} In his three assignments of error, Father argues the juvenile court erred by

granting permanent custody of E.A. to WCCS. Following a thorough review of the record, we

find Father's assignments of error are without merit.

       {¶ 19} Before a natural parent's constitutionally protected liberty interest in the care

and custody of his child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.

Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6.

       {¶ 20} A reviewing court will reverse a finding by the juvenile court that the evidence

was clear and convincing only if there is a sufficient conflict in the evidence presented. Id.

Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and award permanent
                                              -4-
                                                                       Warren CA2019-02-012

custody to a children services agency if it makes findings pursuant to a two-part test. In re

G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First, the court must find

that the grant of permanent custody to the agency is in the best interest of the child, utilizing,

in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001,

2014-Ohio-2896, ¶ 21. Second, the court must find that any of the following apply: (1) the

child is abandoned; (2) the child is orphaned; (3) the child has been in the temporary custody

of the agency for at least 12 months of a consecutive 22-month period; (4) 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 (5) 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 on three separate occasions. R.C.

2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709,

¶ 10. Only one of those findings must be met for the second prong of the permanent custody

test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶

12.

       {¶ 21} As to the second prong, the trial court found three of the R.C.

2151.414(B)(1)(a)-(e) factors applied: E.A. was abandoned, had been in the temporary

custody of the agency for at least 12 months of a consecutive 22-month period, and could not

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

parent.

       {¶ 22} On appeal, Father disputes the juvenile court's finding with respect to

abandonment and placement within reasonable time. However, Father does not dispute the

finding that E.A. had been in the temporary custody of the agency for at least 12 months of a

consecutive 22-month period. Since that finding is undisputed, we conclude that Father's

remaining arguments with respect to abandonment and placement within reasonable time
                                               -5-
                                                                      Warren CA2019-02-012

are moot. As noted above, the juvenile court need only make one of the five findings

enumerated in R.C. 2151.414(B)(1). In re B.C., 12th Dist. Warren Nos. CA2018-03-024 and

CA2018-03-027, 2018-Ohio-2673, ¶ 18. Nevertheless, we will consider Father's arguments

in light of the best interest factors.

       {¶ 23} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing:

               [T]he court shall 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 * * *;

               (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.

       {¶ 24} In granting the motion for permanent custody, the juvenile court considered

each of the best interest factors in light of the evidence presented at the hearing. With

respect to R.C. 2151.414(D)(1)(a), the juvenile court found that E.A. is bonded with her foster

family and is thriving in that placement. Though Father spent time with E.A., and had been

permitted unsupervised visitation, the record also reflects that Father cancelled visits on 14

different occasions and then simply stopped visiting her at all in early 2017. It is undisputed

that Father last saw E.A. on January 27, 2017 and had not seen her in the two years leading
                                               -6-
                                                                      Warren CA2019-02-012

up to the permanent custody hearing.

       {¶ 25} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that,

due to her young age, E.A. was unable to express her wishes, but the Guardian ad Litem

recommended that permanent custody be granted in favor of WCCS.

       {¶ 26} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed the

custodial history of E.A. The juvenile court found E.A. was adjudicated dependent and had

been in the temporary custody of the agency for 12 or more months of a consecutive 22-

month period.

       {¶ 27} In considering R.C. 2151.414(D)(1)(d), the juvenile court found E.A. is in need

of a legally secure placement, the agency can provide the necessary legally secure

placement, and such placement is the only way her needs can be achieved. Specifically, the

juvenile court noted that Mother and Father have been unable to meet E.A.'s needs or

remedy the conditions resulting in her removal. Father has not seen E.A. in two years and

Mother's whereabouts were unknown at the time of the permanent custody hearing. The

juvenile court noted that the best chance for E.A. to achieve stability was through the grant of

permanent custody and adoption.

       {¶ 28} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court found that

none of the factors set forth apply.

       {¶ 29} Based on these findings, the juvenile court found by clear and convincing

evidence that it was in E.A.'s best interest to grant permanent custody to WCCS. On appeal,

Father erroneously states that he completed nearly all of his case plan services. Father also

argues that his failure to visit E.A. was only due to WCCS's failure to visit his residence in

Columbus. Father believes that his initial compliance with the case plan suggests that he

could attain custody within a reasonable time.

       {¶ 30} We have carefully and thoroughly reviewed the evidence in this case and find
                                              -7-
                                                                      Warren CA2019-02-012

that the juvenile court's determination regarding the best interest of E.A. is supported by clear

and convincing evidence. In this case, Mother and Father both abandoned E.A. by failing to

visit or contact her for more than 90 days. See R.C. 2151.011(C). Though Father initially

complied with the case plan, he abruptly stopped visitation with E.A. and had not seen her in

the two years prior to the permanent custody hearing. Furthermore, Father failed to comply

with requirements of home verification during the pendency of the proceedings and, when he

did attempt to reengage with WCCS, failed to complete new mental health and drug and

alcohol assessments. Father cites his inflexible work schedule, illness, communication

mishaps, and alleged appointment cancellations as reasons why he could not visit E.A. more

regularly or comply with case plan requirements, but we find these excuses are

unpersuasive. Father had ample time and opportunity to demonstrate his fitness to parent

E.A. but chose not to. As a result, we find E.A.'s best interests were served in the grant of

permanent custody.

       {¶ 31} In light of the foregoing, we find the juvenile court's decision was supported by

clear and convincing evidence and find no error in the juvenile court's decision to grant

permanent custody to WCCS. Father's three assignments of error are overruled.

       {¶ 32} Judgment affirmed.


       HENDRICKSON, P.J., and S. POWELL, J., concur.




                                               -8-
