[Cite as In re E.A., 2020-Ohio-2969.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


In re E.A., H.A.                                Court of Appeals No. L-19-1286

                                                Trial Court No. JC 17264893



                                                DECISION AND JUDGMENT

                                                Decided: May 15, 2020

                                            *****

        Laurel A. Kendall, for appellant.

        Kevin J. Ankney, for appellee.

                                            *****

        SINGER, J.

        {¶ 1} This is an appeal from the November 18, 2019 judgment of the Lucas

County Court of Common Pleas, Juvenile Division, terminating the parental rights of

appellant, E.S., the mother of E.A. and H.A. (“the children”), and granting permanent

custody of the children to appellee, Lucas County Children Services (“LCCS”). For the

reasons that follow, we affirm the judgment.
       {¶ 2} Appellant sets forth two assignments of error:

              I. The dispositional timeline was not proven by clear and

       convincing evidence when no certified copies of court orders were

       introduced as evidence, and no testimony concerning a motion to extend

       temporary custody occurred on the record of the final hearing.

              II. In the alternative, the trial court’s decision to award custody to

       Lucas County Children Services pursuant to R.C. 2151.414(E)(1) and

       (E)(14) and R.C. 2151.414(D 1) was based on insufficient evidence, and/or

       was against the manifest weight of the evidence.

                                       Background

       {¶ 3} Appellant is the mother of E.A., who was born in November 2011, and H.A.,

who was born in May 2013. D.A is the father of the children. At the time the children

were born, mother and father were in a relationship, but were not married.

                                            2016

       {¶ 4} In November 2016, LCCS became involved with the family due to substance

abuse, mental health concerns and domestic violence issues between mother and father.

A safety plan was instituted which consisted of the children staying with the paternal

grandmother. In addition, case plan services were offered including: parenting classes;

domestic violence counseling; dual diagnostic assessment; substance abuse treatment;

housing; and mental health treatment for mother.




2.
                                           2017

       {¶ 5} On September 19, 2017, LCCS filed a non-emergency complaint in

dependency and neglect and for protective supervision alleging: father was charged with

domestic violence for an incident that occurred with mother, in November 2016; mother

obtained a protective order against father; and both parents accused the other of substance

abuse. LCCS further alleged mother completed domestic violence counseling, obtained

housing, engaged in mental health treatment, started a parenting program, visited with the

children at the grandmother’s home, mother tested positive for marijuana in January 2017

and August 2017, and failed to comply with substance abuse education.

       {¶ 6} On September 28, 2017, the court appointed a special advocate/guardian

ad litem (“CASA/GAL”) for the children.

       {¶ 7} On November 6, 2017, the CASA/GAL filed a report and recommendation.

       {¶ 8} On November 8, 2017, a hearing was held. On November 22, 2017, the

magistrate issued a decision adjudicating the children dependent, with the parents’

consent, and granting LCCS protective supervision over the children while they lived

with mother.

       {¶ 9} On November 29, 2017, LCCS filed a motion to change disposition and

requested an emergency hearing. LCCS asserted mother reported the following to a

caseworker: she was assaulted by her paramour, Sam, in early November 2017, after

accusing him of stealing her 40-pill prescription of Percocet; she was thrown against the

television, which broke, and she had a black eye; she and the children were going to




3.
reside with her dad’s ex-wife; and her 24-pill prescription of Percocet was also missing.

LCCS further asserted mother reported to another caseworker: Sam beat her up and she

was homeless, moving from place to place with the children; she was not truthful about

the missing Percocet and why she had missed parenting meetings. LCCS alleged mother

missed a home visit and five parent-child observations in October and November 2017.

In addition, LCCS asserted at the November 28, 2017 family case conference, mother

reported she and the children are living with Sam and mother recanted her previous

claims of domestic violence with Sam.

       {¶ 10} Also on November 29, 2017, a hearing was held and LCCS was granted

interim temporary custody of the children. The children were placed in a foster home.

                                           2018

       {¶ 11} On January 26, 2018, a motion to change disposition hearing was held

before the magistrate; mother attended, as did the caseworker and CASA/GAL. On

February 8, 2018, the magistrate issued a decision ordering, by a preponderance of the

evidence, it was in the best interest of the children to grant temporary custody of the

children to LCCS effective January 26, 2018. On February 23, 2018, the judge filed a

judgment entry in which she ordered that, by a preponderance of the evidence, granting

temporary custody of the children to LCCS was in the children’s best interest.

       {¶ 12} On August 16, 2018, LCCS filed a motion for extension of temporary

custody of the children. LCCS alleged the children were engaged in trauma counseling,

mother made progress in her case plan services including substance abuse, mental health,




4.
parenting and domestic violence. LCCS also alleged a six-month extension was in the

best interest of the children, as there was reasonable cause to believe that the children

would be reunified with one of the parents or otherwise permanently placed within the

period of extension. On September 18, 2018, a hearing was held, and on September 19,

2018, the magistrate issued a decision ordering, by clear and convincing evidence, it was

in the children’s best interest to extend LCCS’s temporary custody. On September 25,

2018, the judge filed a judgment entry granting an extension of LCCS’s temporary

custody of the children, in which she ordered, by clear and convincing evidence, it was in

the children’s best interest to extend LCCS’s temporary custody.

                                            2019

       {¶ 13} On January 24, 2019, LCCS filed a motion to change placement, terminate

temporary custody and to determine support and visitation. On February 21, 2019, a

hearing was held. The magistrate issued a decision that same day finding mother

completed all services, has housing and continues with mental health counseling. The

magistrate further found the children were engaged in counseling and it was in their best

interest for mother to have legal custody, with LCCS’s protective supervision. The

children were returned to mother that day. Mother was living with her paramour, Melvin.

       {¶ 14} On March 20, 2019, LCCS filed a motion to change disposition and

requested an emergency hearing. LCCS asserted on February 25, 2019, its caseworker

met with mother and the children at Melvin’s house, and mother reported Melvin had

served her with a 30-day eviction notice. LCCS further asserted on March 12, 2019, its




5.
caseworker learned two calls were made to 911 to report domestic violence incidents, one

call in November 2018 and one call on March 10, 2019. Mother told the caseworker the

children were at an aunt’s house when the March 10, 2019 incident occurred, but when

the caseworker called the aunt, the aunt denied the children had been there. Mother then

admitted the children were present for the domestic violence incident. Mother stated

Melvin called 911 and he said she would lose her children, so mother and the children

left the home and were staying with a friend. In addition, LCCS asserted on March 13,

2019, its caseworker met with the children who said Melvin hit mother and they were in

the bedroom crying. LCCS also asserts on March 12, 13 and 18, 2019, it was requested

that mother “drop urine,” but she failed to do so.

       {¶ 15} Also on March 20, 2019, a hearing was held. The magistrate issued a

decision that same day ordering interim temporary custody of the children to LCCS. The

children were removed from mother’s care and were placed with mother’s aunt before

going to a foster home.

       {¶ 16} A hearing was held on May 29, 2019, and the magistrate issued a decision

on May 31, 2019, awarding temporary custody of the children to LCCS. The magistrate

noted the issues to be addressed through services include mental health, substance abuse

and domestic violence. The caseworker testified the children were present for the

February 2019 domestic violence episode, there were new substance abuse concerns,

mother has to find independent housing and submit to drug screens and continue in

services. The children remained in foster care.




6.
       {¶ 17} Also on May 29, 2019, mother was drug tested, and on May 30, 2019, the

test results showed mother tested positive for Buprenorphine (Suboxone) and EtG

(alcohol).

       {¶ 18} On July 2, 2019, LCCS filed a motion for permanent custody of the

children, and to extend temporary custody.

       {¶ 19} On October 24, 2019, the CASA/GAL filed her final report and

recommendation. A hearing was held on November 7, 2019; mother participated, father

did not.

       {¶ 20} On November 18, 2019, the court issued its judgment entry, granting

permanent custody of the children to LCCS. Mother appealed. Father is not a party to

this appeal.

                           The Permanent Custody Hearing

       {¶ 21} Mother attended the hearing and testified. LCCS called two witnesses, the

caseworker and the CASA/GAL. The testimony which is relevant to mother’s appeal is

summarized below.

                                 Caseworker Flowers

       {¶ 22} Da’Nelle Flowers testified she was an ongoing caseworker for LCCS, and

started working with mother, father and the children in November 2016. The initial

concerns were domestic violence between the parents and help was needed with the

children. An in-home safety plan was implemented, which included the children being

placed with their paternal grandmother, and grandmother supervising the separate visits




7.
of mother and father. Mother was to complete the following services: a domestic

violence course; parenting; substance abuse; and a mental health diagnosis. Mother did

complete a domestic violence course and a parenting course.

       {¶ 23} Around November 2017, there was a domestic violence incident with

mother and her new boyfriend, Joe, after mother had completed the domestic violence

course. The children were adjudicated dependent in early November 2017. Thereafter,

protective supervision was granted, and mother was in a relationship with Sam by that

time. It was then discovered that there was a domestic violence incident between mother

and Sam, where mother received a black eye. At first, mother said she received the black

eye at work, but then she admitted it was due to a domestic violence incident. LCCS

took temporary custody of the children in November 2017, and the children went to a

foster home, where they stayed for two months before being transferred to another foster

home. There was another domestic violence incident between mother and Sam on

December 14, 2017, after the children had been removed from mother’s care.

       {¶ 24} Flowers testified mother completed two parenting courses, two domestic

violence courses, underwent assessments where it was recommended that she go to

counseling and a marijuana course; mother complied. Mother was put in touch with a

community advocate in November 2018, to help link mother with outside resources.

       {¶ 25} Mother consistently visited with the children and there were some minor

concerns, but no glaring issues. Overall, mother did well in the visits, bringing food for

the children and playing games, doing crafts or playing outside with the children.




8.
       {¶ 26} On February 21, 2019, the children were returned to mother’s care, and

LCCS was granted protective supervision. Mother lived with her boyfriend, Melvin.

Flowers went for the five-day home visit with mother and found mother crying. Mother

said she and Melvin were not getting along and he had given her an eviction notice so she

and the children had to move out of his home. Mother did not mention any domestic

dispute issues. When Flowers left, mother and the children were still at Melvin’s home.

Flowers set mother up with a community advocate to help get mother housing.

       {¶ 27} Flowers ran 911 calls and discovered there was one domestic dispute

between mother and Melvin on November 23, 2018, and another dispute on March 10,

2019. If Flowers would have known about the November 2018 incident, it would have

impacted her decision and changed the plan as far as reunifying the family in Melvin’s

home. Mother was asked about the incidents and said the November 2018 call happened

because Melvin was abusing drugs and he assaulted her, and the March 2019 call was a

malicious call by Melvin when mother was trying to get her and the children’s belongings

from the home. The children were removed from mother’s care in March 2019, and

placed with a relative. Thereafter, the children were moved to a foster home.

       {¶ 28} With respect to mother dating Melvin, Flowers received a report that

mother was seen leaving a visitation with Melvin around June of 2019. Flowers had

concerns because mother completed domestic violence courses, but still remains in

contact with the domestic violence abusers, so it is unclear if mother can keep the

children safe. Mother’s pattern is to go from man to man to man. Mother told Flowers




9.
the children witnessed domestic violence by their father and heard other domestic

violence incidents.

       {¶ 29} Regarding the children’s behavior, E.A. has had issues with aggression at

school and in the foster home, so he was referred for counseling. In the current foster

home, E.A.’s behaviors seemed to escalate as he harmed animals and stabbed a kid at

school with a pencil. E.A. went back to counseling and he is doing much better. E.A.

has an IEP at school for his behaviors.

       {¶ 30} Flowers noted housing has been a case plan service for mother because

throughout the case, mother has not had stable, independent housing. Mother was

currently residing with her dad in a one-bedroom apartment, which is not appropriate for

the children because it is too small of a space.

       {¶ 31} Flowers talked with E.A., and the majority of the time, he said he wanted to

be with mother. Flowers could not think of any other services mother could be offered.

Flowers does not think mother takes responsibility for the situation her children are in,

and Flowers believed it was in the children’s best interest for LCCS to be awarded

permanent custody.

                                          Mother

       {¶ 32} Mother testified that she finished her last domestic violence course in

October 2018. Mother discussed what she learned in the reunification classes and how to

care for the children and handle their behaviors. She also talked about the domestic




10.
violence survivors’ course she took and passed, and the fact that she had to take a second

course because of the incident between her and Sam.

       {¶ 33} Mother testified that she missed some drug screens because of

emergencies, her child was in the hospital, transportation issues, child care issues or the

paperwork was not there so she could not leave a sample to be tested.

       {¶ 34} After the March 10, 2019 domestic violence incident with Melvin, mother

stated that she and the children left Melvin’s house and lived with two of her girlfriends

for about two weeks. Then, the children were placed in the temporary custody of

mother’s aunt for a while before LCCS took custody of the children. At that point,

mother went to live with her dad.

       {¶ 35} Mother was asked by the judge when the last time was that she was with

Melvin. Mother responded the last time she physically saw Melvin was in June 2019.

Mother said she went back with Melvin after the March 2019 fight for just one day,

which was the time she tested positive for Suboxone. Mother said her last contact with

Melvin was in July 2019, when she was asking to retrieve her belongings from his

garage.

       {¶ 36} Mother was cross-examined about her contact with Melvin after the March

2019 domestic violence incident, and she was asked if she had contact with him in April

or early May 2019, because that is when she tested positive for Suboxone. Mother

agreed she had contact with him, but that was her last contact. Mother was reminded that




11.
she was seen with Melvin in June 2019, following a visit. Mother acknowledged she saw

Melvin after she tested positive for Suboxone.

       {¶ 37} Mother testified she called 911 in August 2019, because Melvin was

harassing her and threatened to commit suicide, but there was no physical violence

between them.

       {¶ 38} Mother was asked about her counseling sessions, and if the last time she

attended was August 29, 2019. Mother ultimately admitted that was her last session.

       {¶ 39} Mother talked about her visits with the children, the last of which was the

previous Saturday, and how she only missed visits if she was sick with a fever over 101

degrees. Mother recalled the different activities she and the children did together, like

having birthday parties, making silly hats and pet rocks, and decorating pumpkins.

       {¶ 40} At the time of the hearing, November 7, 2019, mother was not in any

relationship and she was focusing on herself and her children so they could heal from

everything that they experienced. Mother took responsibility for what happened with the

children, saying it was all her fault. Mother was asked how her life has changed since

June 2019. Mother said she is supposed to be getting housing and she is going to get her

driver’s license next week so she can start working. Mother stated she has a job waiting

for her as a pizza delivery driver. Mother said she has worked during the case.

                                       CASA/GAL

       {¶ 41} Maria Gonzalez testified she was appointed the CASA for the children.

She conducted an independent examination and submitted her findings in the GAL report




12.
she filed with court. Gonzalez visited with the children when they were with the paternal

grandmother, she interviewed the caregivers, the children and mother, she met with the

caseworker, she met with father at the beginning of the case, she visited the children at

their school and she reviewed records.

       {¶ 42} Gonzalez opined it was in the children’s best interest for permanent

custody to be given to LCCS. Gonzalez observed she has been on the case over the past

two years and the children have been reunited with mother two times, mother completed

all plan services, but both times it fell through. Gonzalez stated it was a very difficult

recommendation because there is no doubt of the love mother and the children have for

each other, mother is very appropriate at visits and the children love spending time with

mother. However, when the reunification fell through twice, Gonzalez could see the

detriment it caused to the children. The children had witnessed domestic violence, were

removed from the home, attended therapy, had visits with mother starting at Level 1, then

Level 2, then the children spent weekends with mother. The children would be hopeful

that this time it would be forever and they would stay, but then they were asked to leave

so the children would be sad. The children both said they want to stay with mom.

       {¶ 43} Gonzalez said the situation is very hard because mother does not have

housing or stable employment, and she is still dealing with her mental situation.

       {¶ 44} Regarding E.A.’s behavior, Gonzalez interviewed the foster mother and

learned through a school report about the issues, including hurting a small animal, being

very aggressive at school, using a pencil as something that could harm another child,




13.
having scissors taken away, being very angry and frustrated. Gonzalez did not see these

behaviors during visits with mother.

       {¶ 45} Gonzalez has concerns because of the repeat patterns of domestic violence.

Mother has taken domestic violence classes recommended, and she acts after the fact of

the situation, which seems a little bit late because she is already in the situation.

Gonzalez saw mother getting into Melvin’s truck on June 8, 2019, after a visit and

Gonzalez was surprised to see that.

       {¶ 46} Gonzalez was asked if she could, in good faith, recommend that the

children go home to mom as of today. Gonzalez replied, “Mom has no home.”

       {¶ 47} Gonzalez was also asked if temporary custody was extended and at the end

of six months, mother has a job, an appropriate place to stay and has not been with any

guys for the last few months, would Gonzalez change her mind. Gonzalez stated she

asked herself that question twice before with the previous reunifications, and mother was

given time so she could be ready. Gonzalez said the children deserve more than just a

mom for a couple of hours on a weekday, and mother needs a lot of support that she does

not have right now, as she does not have a steady job or housing.

                                 Juvenile Court’s Decision

       {¶ 48} The court observed LCCS became involved with the family in November

2016, and the initial case plan services offered to mother included parenting classes,

domestic violence counseling and a dual diagnostic assessment. In addition, a safety plan

was instituted which had the children staying with their grandmother. Mother completed




14.
domestic violence counseling in June 2017, but not the other services offered. A non-

emergency protective supervision complaint was filed September 19, 2017, the children

were adjudicated neglected and dependent on November 8, 2017 and LCCS was granted

interim temporary custody of the children on November 29, 2017, then temporary

custody on January 26, 2018.

      {¶ 49} The court noted mother completed all case plan services offered, so in

February 2019, the children were reunited with mother, who at that time lived with

Melvin. Due to two 911 calls reporting domestic violence with mother and Melvin, the

children were removed from mother’s care in March 2019. The court found mother

continued her relationship with Melvin after the children were removed, which was the

second time during the case that mother continued her relationship with a man even after

the relationship caused the removal of the children. The court further found mother has

not remedied the domestic violence concerns which caused the children’s removal from

the home numerous times, and mother failed to offer a credible reason why she

continually failed to remedy the issues which caused the children’s removal from the

home. The court also found mother lacked a stable and appropriate home environment

for the children. Regarding father, the court found he abandoned the children.

      {¶ 50} The court found, by clear and convincing evidence, the children cannot be

placed with either parent within a reasonable period of time and should not be placed

with either parent, and despite reasonable case planning and diligent efforts by LCCS to

assist parents to remedy the problems which caused the children to be placed outside of




15.
the home, parents continuously and repeatedly failed to substantially remedy those

conditions. The court also found mother was unwilling to prevent the children from

suffering physical, emotional, or sexual abuse or physical, emotional, or mental neglect.

The court further found it is in the children’s best interest to award permanent custody to

LCCS for adoptive placement and planning, as the children are currently in a stable home

which meets their needs. The court found the children need a safe, secure and permanent

environment, which cannot happen without LCCS being granted permanent custody.

                                First Assignment of Error

       {¶ 51} Mother asserts the dispositional timeline was not proven by clear and

convincing evidence because there was no testimony at the final hearing regarding the

August 16, 2018 motion to extend temporary custody, nor were certified copies of

motions or court orders introduced or filed as exhibits. Mother notes temporary custody

terminates one year after the complaint is filed or the child is placed in shelter care,

whichever is earliest, without the granting of a motion to extend custody. Mother

observes the court found the case was out of time because it was opened more than two

years before the final hearing. Mother argues LCCS did not prove, by clear and

convincing evidence, temporary custody was extended because “there was no testimony

on the record concerning the Motion to Extend Temporary Custody * * * * and the only

indication of such a motion was in a docket entry * * *.” Mother suggests we should find

the juvenile court could have extended LCCS’s temporary custody to allow her time to

stabilize housing.




16.
       {¶ 52} LCCS counters it is not disputed that temporary custody was extended on

September 18, 2018, and there is no time requirement under R.C. 2151.414(B)(1)(a), that

needs to be proven by clear and convincing evidence. LCCS submits even if temporary

custody was not extended, the trial court was not divested of jurisdiction.

                                             Law

       {¶ 53} R.C. 2151.414(A)(1) provides in relevant part:

              Upon the filing of a motion * * * for permanent custody of a child,

       the court shall schedule a hearing and give notice of the filing of the motion

       and of the hearing * * * to all parties to the action and to the child’s

       guardian ad litem. * * *

              The court shall conduct a hearing * * * to determine if it is in the

       best interest of the child to permanently terminate parental rights and grant

       permanent custody to the agency that filed the motion. The adjudication

       that the child is an abused, neglected, or dependent child and any

       dispositional order that has been issued in the case under section 2151.353

       of the Revised Code pursuant to the adjudication shall not be readjudicated

       at the hearing and shall not be affected by a denial of the motion for

       permanent custody.

       {¶ 54} R.C. 2151.353 states in relevant part:

              (A) If a child is adjudicated an abused, neglected, or dependent

       child, the court may make any of the following orders of disposition:




17.
             ***

             (2) Commit the child to the temporary custody of any of the

      following:

             (a) A public children services agency;

             ***

             (G) Any temporary custody order issued pursuant to division (A) of

      this section shall terminate one year after the earlier of the date on which

      the complaint in the case was filed or the child was first placed into shelter

      care, except that, upon the filing of a motion pursuant to section 2151.415

      of the Revised Code, the temporary custody order shall continue and not

      terminate until the court issues a dispositional order under that section.

      {¶ 55} R.C. 2151.415(A) states in relevant part:

             (A) * * * [A] public children services agency * * * that has been

      given temporary custody of a child pursuant to section 2151.353 of the

      Revised Code, not later than thirty days prior to the earlier of the date for

      the termination of the custody order pursuant to division (H) of section

      2151.353 of the Revised Code or the date set at the dispositional hearing for

      the hearing to be held pursuant to this section, shall file a motion with the

      court that issued the order of disposition requesting that any of the

      following orders of disposition of the child be issued by the court:

             ***




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              (6) In accordance with division (D) of this section, an order for the

       extension of temporary custody.

       {¶ 56} It is well-settled law in Ohio that “a court speaks through its docket and

journals. Indus. Comm. v. Musselli (1921), 102 Ohio St. 10, 130 N.E. 32.” Oney v. Allen,

39 Ohio St.3d 103, 107, 529 N.E.2d 471 (1988).

                                         Analysis

       {¶ 57} Upon review, it is clear from a reading of the plain language of R.C.

2151.414, that during the hearing on a motion for permanent custody, the juvenile court

shall not readjudicate a dispositional order previously issued under R.C. 2151.353.

       {¶ 58} Here, the juvenile court followed the strictures of R.C. 2151.414. The

court granted LCCS’s motion for temporary custody of the children on January 26, 2018,

in accordance with R.C. 2151.353(A)(2)(a), then LCCS moved to extend temporary

custody on August 16, 2018. On September 19, 2018, the magistrate issued a decision

ordering, by clear and convincing evidence, it was in the children’s best interest to extend

LCCS’s temporary custody, and on September 25, 2018, the judge issued a judgment

entry, in accordance with R.C. 2151.353(G), in which she ordered, by clear and

convincing evidence, it was in the children’s best interest to extend LCCS’s temporary

custody. Since the court’s orders regarding LCCS’s temporary custody of the children

were dispositional orders made under R.C. 2151.353, the court was precluded from

readjudicating these dispositional orders at the hearing.




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       {¶ 59} We therefore find mother’s claim that LCCS did not prove the dispositional

timeline by clear and convincing evidence because there was no testimony or certified

copies of motions or court orders introduced as exhibits at the hearing regarding

extending LCCS’s temporary custody of the children is without merit. Accordingly,

mother’s first assignment of error is found not well-taken.

                              Second Assignment of Error

       {¶ 60} Mother argues the court’s decision to award permanent custody to LCCS

was based on insufficient evidence and/or was against the manifest weight of the

evidence.

                               Law—Permanent Custody

       {¶ 61} The juvenile court may grant permanent custody of a child to a children

services agency if the court finds, by clear and convincing evidence: (1) the existence of

at least one of the four factors set forth in R.C. 2151.414(B)(1)(a) through (d), and (2) the

child’s best interest is served by granting permanent custody to the agency. In re M.B.,

10th Dist. Franklin No. 04AP755, 2005-Ohio-986, ¶ 6; R.C. 2151.353(A)(4). Clear and

convincing evidence requires proof which “produce[s] in the mind of the trier of facts a

firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 62} A juvenile court’s decision in a permanent custody case will not be

reversed on appeal unless it is against the manifest weight of the evidence. In re A.H.,

6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11, citing In re Andy-Jones, 10th




20.
Dist. Franklin Nos. 03AP-1167 and 03AP-1231, 2004-Ohio-3312, ¶ 28. “The underlying

rationale of giving deference to the findings of the trial court rests with the knowledge

that the trial judge is best able to view the witnesses and observe their demeanor, gestures

and voice inflections, and use these observations in weighing the credibility of the

proffered testimony.” Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d

1273 (1984). Furthermore, “[e]very reasonable presumption must be made in favor of

the judgment and the findings of facts [of the trial court].” Karches v. Cincinnati, 38

Ohio St.3d 12, 19, 526 N.E.2d 1350 (1988). Hence, a judgment supported by some

competent, credible evidence going to all essential elements of the case is not against the

manifest weight of the evidence. Id.; C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 376 N.E.2d 578 (1978), syllabus.

                           Factors under R.C. 2125.414(B)(1)

       {¶ 63} R.C. 2125.414(B)(1) states in relevant part:

              (a) The child is not abandoned or orphaned * * * 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(E)

       {¶ 64} R.C. 2151.414(E) requires a juvenile court to find that a child cannot be

placed with either of the child’s parents within a reasonable time or should not be placed




21.
with either parent if any one of sixteen factors are met. R.C. 2151.414(E)(1)-(16). R.C.

2151.414(E)(1) and (14) provide:

              (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.

              ***

              (14) The parent for any reason is unwilling to provide food, clothing,

       shelter, and other basic necessities for the child or to prevent the child from

       suffering physical, emotional, or sexual abuse or physical, emotional, or

       mental neglect.

                                          Analysis

       {¶ 65} The record shows the children initially lived with mother and father, but

due to problems including domestic violence, the children went to live with the paternal

grandmother and mother visited with children. The children were returned to live with

mother and her boyfriend, but shortly thereafter, due to domestic violence, the children

were removed from mother’s care and were placed together in a foster home. After two

months, the children were placed in another foster home. Mother consistently visited the

children. About a year later, the children were returned to live with mother and another




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boyfriend. The children were in mother’s care for about a month before they were

removed and placed together in a third foster home. Again, mother continued to visit the

children. When the reunification between mother and the children fell through twice, it

caused detriment to the children, according to the CASA/GAL.

       {¶ 66} Each time that the children were removed from mother’s care it was

because of domestic violence which occurred between mother and her then-partner. The

children heard and sometimes saw the violence. Mother completed two domestic

violence courses, yet she continued to be involved with partners who were violent.

Moreover, mother did not report the domestic violence incidents to the caseworker, and

mother was not forthright as to her contact with Melvin after their second domestic

violence incident.

       {¶ 67} Mother also had a pattern of living with her current boyfriend and not

having independent, stable housing. Housing was included in mother’s case plan, but she

did not have her own residence throughout the case, including at the time of the

permanent custody hearing. In addition, mother’s employment was not consistent, and

she was not employed at the time of the permanent custody hearing. While mother

participated in almost all of the recommended case plan services, many of the issues

which caused the children to be removed from her care still exist.

       {¶ 68} Upon review, we find there was clear and convincing evidence supporting

the juvenile court’s conclusion that the children cannot and should not be placed with

mother. See R.C. 2151.414(B)(1)(a). We further find the juvenile court’s conclusion that




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mother failed to remedy the conditions which caused the children to be placed outside of

the home is supported by clear and convincing evidence in the record. See R.C.

2151.414(E)(1). In addition, we find the juvenile court’s conclusion that mother is

unwilling to prevent the children from suffering emotional abuse or neglect is supported

by clear and convincing evidence in the record. See R.C. 2151.414(E)(14).

       {¶ 69} Turning to the second prong of the permanent custody analysis, the best

interest of the children, the record shows the children were in and out of mother’s care, in

and out of two relatives’ homes and in and out of three different foster homes over the

course of the case. Mother and the children love each other, mother’s visits with the

children are very appropriate and the children love spending time with mother. When the

children were returned to mother’s care they would be hopeful that it would be forever

and they would stay with mother, but when the children had to leave mother’s care, they

were sad. E.A. had aggression and behavioral issues, for which he has an IEP at school,

and E.A. was referred to and attended counseling for his behavior. E.A.’s wish was to

live with mother, but the CASA/GAL recommended that permanent custody of the

children be granted to LCCS so that the children could have a stable home and be

adopted.

       {¶ 70} Based on the foregoing, we find the juvenile court had before it clear and

convincing evidence that granting permanent custody of the children to LCCS was in the

children’s best interest, as the evidence shows mother demonstrated she is unable to

provide a safe, stable, permanent home for the children. We further find the juvenile




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court’s decision to grant permanent custody of the children to LCCS is supported by

sufficient competent, credible evidence and is not against the manifest weight of the

evidence. See R.C. 2151.414(B)(1)(a). Accordingly, mother’s second assignment of

error is not well-taken.

       {¶ 71} On consideration whereof, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court

costs of this appeal pursuant to App.R. 24.

                                                                       Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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