[Cite as In re B.T., 2017-Ohio-7454.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    ASHTABULA COUNTY, OHIO


IN THE MATTER OF:                                :        OPINION

B.T., D.T., AND C.T.
                                                 :        CASE NO. 2017-A-0025




Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case
No. 2014 JC 00030.

Judgment: Affirmed.


Mandy J. Gwirtz, Mandy Gwirtz, LLC, 20050 Lakeshore Boulevard, Euclid, OH 44123
(For Appellant Mother).

Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047; Margaret A. Draper, Assistant Prosecutor ACCSB, 3914 C Court, Ashtabula,
OH 44004 (For Appellee Ashtabula County Children Services Board).

Anita B. Staley, Barthol & Staley, L.P.A., 7327 Center Street, Mentor, OH 44060
(Guardian ad litem).



THOMAS R. WRIGHT, J.



        {¶1}     Appellant, Teresa Toland, appeals the trial court’s decision terminating her

parental rights and granting permanent custody of her children, B.T., D.T., and C.T., to

the Ashtabula County Children Services Board (ACCSB). We affirm.
       {¶2}   ACCSB filed its complaint for protective supervision in June of 2014. Its

verified complaint states that it has been involved with the family since April of 2014 due

to concerns of neglect and because the family was homeless and living in a motel room.

There was also a history of abuse of B.T. by mother’s live-in boyfriend at the time, who

is also C.T.’s father.

       {¶3}   On December 22, 2014, the trial court granted ACCSB temporary custody

of the children for several reasons, including a lack of an adequate home and

appellant’s failure to comply with her mental health and drug screening requirements.

The children went into foster care. At the time of the final hearing, they remained in the

same home in which they had been placed in December 2014. The foster family wants

to adopt all three children.

       {¶4}   In July 2015, the ACCSB moved for permanent custody of the three

children alleging in part that they cannot be placed with either parent in a reasonable

time. Final hearing was held June 9, 2016, and the magistrate found that the children

could not be placed with their parents in a reasonable time and that a grant of custody

was in the best interest of the children. The trial court agreed.

       {¶5}   Appellant raises one assigned error:

       {¶6}   “The trial court erred by granting permanent custody of B.T., D.T., and

C.T. to the Ashtabula County Children Services Board contrary to the manifest weight of

the evidence.”

       {¶7}   A parent’s right to raise a child is a basic civil right. In re Phillips, 11th

Dist. No. Ashtabula 2005-A-0020, 2005-Ohio-3774, ¶22, citing In re Hayes, 79 Ohio

St.3d 46, 48, 679 N.E.2d 680 (1997). “The parent’s rights, however, are not absolute.




                                             2
Rather, ‘“it is plain that the natural rights of a parent * * * are always subject to the

ultimate welfare of the child, which is the pole star or controlling principle to be

observed.’” In re Cunningham (1979), 59 Ohio St.2d 100, 106, 391 N.E.2d 1034

(quoting In re R.J.C. (Fla.App.1974), 300 So.2d 54, 58).” In re West, 4th Dist. Athens

No. 05CA4, 2005-Ohio-2977, ¶31.

       {¶8}   Before a juvenile court can terminate parental rights and award permanent

custody to the requesting agency, it must conduct a hearing and apply a two-pronged

analysis. First, a trial court must find by clear and convincing evidence that one or more

of the factors in R.C. 2151.414(B)(1)(a)-(e) applies. One of these factors is whether the

children cannot be placed with either of the child’s parents within a reasonable time or

should not be placed with their parents based on an analysis of R.C. 2151.414(E). R.C.

2151.414(B)(1)(a); In re C.C., 11th Dist. Trumbull Nos. 2016-T-0050 & 2016-T-0058,

2016-Ohio-7447, ¶74.

       {¶9}   Second, upon finding one or more of these factors applicable, the court

then must determine whether granting custody of the child to the agency is in the child’s

best interests pursuant to the analysis in R.C. 2151.414(D). In re L.M.R., 11th Dist.

Lake No. 2016-L-096, 2017-Ohio-158, ¶34-35.

       {¶10} The trial court proceeded under R.C. 2151.414(B)(1), which states:

       {¶11} “Except as provided in division (B)(2) of this section, the court may grant

permanent custody of a child to a movant if the court determines at the hearing held

pursuant to division (A) of this section, by clear and convincing evidence, that it is in the

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

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




                                             3
       {¶12} “(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,

or 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 if, as described in division (D)(1) of section 2151.413 of the

Revised Code, the child was previously in the temporary custody of an equivalent

agency in another state, 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.”

       {¶13} The trial court likewise made findings under R.C. 2151.414(E), which

provides in part:

       {¶14} “If the court determines, by clear and convincing evidence, at a hearing

held pursuant to division (A) of this section or for the purposes of division (A)(4) of

section 2151.353 of the Revised Code 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:

       {¶15} “(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




                                             4
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.

       {¶16} “* * *

       {¶17} “(4) The parent has demonstrated a lack of commitment toward the child

by failing to regularly support, visit, or communicate with the child when able to do so, or

by other actions showing an unwillingness to provide an adequate permanent home for

the child;” (Emphasis added.)

       {¶18} “‘Clear and convincing evidence is more than a mere preponderance of

the evidence; instead, it is evidence sufficient to produce in the mind of the trier of fact a

firm belief or conviction as to the facts sought to be established.’ In re Aiken, 11th Dist.

Lake No. 2005-L-094, 2005–Ohio–6146, ¶28.” In re M.G., 11th Dist. Geauga No. 2013-

G-3162, 2014-Ohio-974, ¶12.

       {¶19} We review the trial court’s termination of one’s parental rights pursuant to

the civil manifest weight of the evidence standard. In re J.H., 11th Dist. Lake No. 2012-

L-126, 2013-Ohio-1293, ¶91; In re B.R.C., 11th Dist. Portage Nos. 2013-P-0059 and

2013-P-0060, 2014-Ohio-69, ¶41. “When an appellate court reviews whether a trial

court's permanent custody decision is against the manifest weight of the evidence, the

court ‘“‘weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the [finder of

fact] clearly lost its way and created such a manifest miscarriage of justice that the

[judgment] must be reversed and a new trial ordered.’”’ Eastley [v. Volkman, 132 Ohio




                                              5
St.3d 328] at ¶20; quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d

176 (9th Dist.2001).” In re D.M., 4th Dist. Hocking No. 15CA22, 2016-Ohio-1450, ¶11.

      {¶20} “Issues relating to the credibility of witnesses and the weight to be given

the evidence are primarily for the trier of fact.” In re West, 4th Dist. Athens No. 05CA4,

2005-Ohio-2977, ¶36-37.

      {¶21} Furthermore, the existence of one of the R.C. 2151.414(E) factors is

sufficient to support a finding that a child cannot be placed with either parent within a

reasonable period of time.        A court need not address every factor under R.C.

2151.414(E). In re C.C., J.H. and M.H., 11th Dist. Trumbull Nos. 2016-T-0050 & 2016-

T-0058, 2016-Ohio-7447, ¶75, citing In re J.S.E., J.V.E, 11th Dist. Portage Nos. 2009-P-

0091 & 2009-P-0094, 2010-Ohio-2412, ¶40.

      {¶22} Here, the trial court found appellant failed to remedy the conditions

causing the children to be placed outside the home, i.e., insufficient housing, under R.C.

2151.414(E)(1). It also found appellant demonstrated a lack of commitment toward the

children by failing to regularly support her children and “showing an unwillingness to

provide   an   adequate   permanent home” for her children pursuant              to   R.C.

2151.414(E)(4). We address the trial court’s findings under (E)(1) and (E)(4) together

because appellant’s lack of an adequate and permanent home supports the trial court’s

finding under both subsections.

      {¶23} In determining whether the children cannot be placed with either parent

within a reasonable time or should not be placed with the parents, a court must consider

all relevant evidence including facts relating to the adequacy of parental care occurring




                                            6
before and after the motion for permanent custody is filed. In re Foust, 57 Ohio App.3d

149, 154, 567 N.E.2d 1042 (3d Dist.1989).

       {¶24} The Board initially became involved in this case due to concerns including

neglect and homelessness since the family resided in a motel. Thereafter, the court

granted ACCSB custody of the children in December 2014 based on several reasons,

including appellant’s continued lack of a sufficient home.

       {¶25} ACCSB caseworker Christy Lalli testified for ACCSB at the permanent

custody hearing. Lalli recommended that permanent custody be granted to ACCSB.

Lalli confirmed that ACCSB initially became involved with the family in response to

truancy concerns, but thereafter, there were also allegations of abuse and housing

issues.   Appellant’s housing situation continued to be an issue throughout Lalli’s

involvement with the family.

       {¶26} Lalli explained that appellant did not pursue a housing opportunity she

found for her, and appellant also did not pursue public housing because she said the

two-year wait was too long. Instead, at the time of hearing appellant resides in a duplex

with her fiancé and at least four other adults. The court ordered the adults residing in

her home to get fingerprinted to ensure that it is a safe environment for the children, but

only two of the five complied. Appellant did not pay the rent, but her fiancé did. She did

produce a letter from the landlord verifying that she was allowed to reside in the home.

       {¶27} Nevertheless, the trial court found the home to be insufficient for the

children because appellant continued to lack independent and permanent housing due

to her unwillingness to consider public housing as well as other housing options

presented by Lalli.




                                            7
       {¶28} Lalli likewise indicated that appellant failed to establish her employment

and verify her income sufficient to support the children. Appellant testified that she

worked under the table for a construction company approximately ten hours per week,

when she was not attending college, earning approximately $700 every six months.

       {¶29} Appellant’s visitation with the children was sporadic. She attended 22 of

35 possible visitations.

       {¶30} The guardian ad litem also recommended granting permanent custody to

ACCSB. She agreed that appellant failed to remedy the conditions resulting in the

children being placed out of the home, and that she demonstrated a lack of commitment

to the children by showing an unwillingness to provide an adequate permanent home for

them. She concludes appellant “has done nothing to demonstrate commitment to the

children during this case[,]” and that appellant was unable to show that “she can meet

the basic needs of the children at this time or in the foreseeable future.”

       {¶31} Based on the foregoing, we cannot find that the trial court clearly lost its

way and created a manifest miscarriage of justice requiring reversal. Eastley, supra,

¶20; R.C. 2151.414(E)(16). ACCSB established that appellant did not secure adequate

and permanent housing and that she was unwilling to do so, and as such, she did not

remedy one of the conditions causing the children to be placed outside the home. R.C.

2151.414(E)(1). ACCSB likewise established that appellant lacks a commitment to the

children based on her failure to regularly support and visit her children, and her

unwillingness to secure a permanent home for them. R.C. 2151.414(E)(4).

       {¶32} As for the second prong, the trial court’s finding that permanent

commitment is in the best interest of the children is likewise not against the manifest




                                             8
weight of the evidence. In assessing the best interest of the children, a court must

consider all relevant factors, including:

       {¶33} “(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;

       {¶34} “(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;

       {¶35} “(c) The custodial history of the child, including whether the child has been

in the temporary custody of one or more public children services agencies or private

child placing agencies for twelve or more months of a consecutive twenty-two-month

period, or the child has been in the temporary custody of one or more public children

services agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period and, as described in division (D)(1) of section

2151.413 of the Revised Code, the child was previously in the temporary custody of an

equivalent agency in another state;

       {¶36} “(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;

       {¶37} “(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).

       {¶38} Although appellant established she had consistent housing, her living

situation remained unsettled at the time of the final hearing. The evidence showed that

appellant lacked the ability to provide the children with a secure permanent placement




                                             9
absent the court’s granting custody to ACCSB. R.C. 2151.414(D)(1)(d). She did not

pay the rent, which was paid for by her new fiancé of three months with whom she lived.

Lalli also testified that appellant lived with up to eight other adults, including some who

appeared transient. Lalli also confirmed that two of the residents also had cases with

ACCSB and they were not allowed to have their own children in the house.

        {¶39} The trial court also ordered appellant to produce a lease with her name on

it.   She never did.   At the final disposition hearing she produced a letter from the

landlord, stating she had a right to reside in the house. Nevertheless, her income of

$700 every six months plus food stamps was insufficient to provide for three children.

        {¶40} Consistent with court orders, appellant completed a parenting class for

children in the age range of B.T. and D.T., but she did not complete the class for infants

as instructed.

        {¶41} Appellant attended 22 of 35 possible visitations. And while appellant took

and passed drug screens in 2015, she failed to take several requested by ACCSB in

2016. She provided only a urine sample, but no hair sample for a drug screen ordered

by the trial court in April 2016. Appellant admitted to prior methamphetamine use and

suffering from alcoholism. Appellant also underwent a mental health assessment and

completed some, but not all the recommended services. R.C. 2151.414(D)(1)(a).

        {¶42} Lalli also testified that the children bonded well with their foster family,

especially the youngest child, and that the family wants to adopt the children. This

would enable the children to secure a permanent and safe home, which is in their best

interests. The trial court also found that appellant’s inconsistent bi-weekly visitation

harmed her relationship with her children because the children looked forward to the




                                            10
visits, but were left upset upon her canceling or failing to show. Thus, consistent with

R.C. 2151.414(D)(1)(a), the interaction and interrelationship of the child with appellant

and their foster parents also supports granting permanent custody to ACCSB.

       {¶43} The children’s guardian ad litem states in her report that the children loved

appellant, but that neither of the children old enough to express a wish as to custody

expressed a desire to return to her. She described the children as “thriving” in their

foster care home.

       {¶44} Based on the foregoing, the trial court’s best interest determination is

supported by competent, credible evidence, and as such we cannot find the finder of

fact clearly lost its way. Thus, the second prong is satisfied as well.

       {¶45} Accordingly, appellant’s sole assigned error lacks merit, and the trial

court’s decision is affirmed.



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.


                                 ____________________



COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶46} I concur with the well-reasoned conclusion of the majority. However, I feel

it gives short shrift to the analysis required by the statutory framework.         I write

separately to discuss the analysis that is inherent in that framework, and which should

be applied by trial courts when considering the two-prong test for termination of parental

rights under R.C. 2151.414.



                                             11
       {¶47} The law presumes it is in the overriding best interests of a child to be

raised by his or her natural parents. In re Hughes, 9th Dist. Wayne No. 1759, 1982 WL

2875, *3 (Jan. 20, 1982) (“there is a strong presumption that it is in the child’s best

interests to be raised by its natural parents”); In re Mullens, 1st Dist. Hamilton No. C-

790315, 1980 WL 352882, *2 (April 2, 1980) (there is “a strong tendency in our law to

find the child’s best interests lies in staying with a natural parent”); see also In re

Marriage of Barber, 8 Ohio App.3d 372, 375 (8th Dist.1983) (“it is in the best interests of

children that they continue to know, love, and respect their natural parents”). The

federal and state constitutions, as well as the statute, protect the reciprocal rights of

parents and their children, including children’s rights to be with their parents, and that of

parents to be with their children. Santosky v. Kramer, 455 U.S. 745, 753-754 (1982).

       {¶48} In finding that ACCSB had carried its burden of showing it was in the best

interests of these children to grant it permanent custody, the magistrate cited Ms. Lalli’s

testimony that all three had bonded with their foster parents, and that Ms. Toland had

only made 22 of 35 potential visitations, R.C. 2151.414(D)(1)(a). The magistrate cited

the fact that B.T. and D.T. refused to express a desire to return to Ms. Toland’s custody,

R.C. 2151.414(D)(1)(b). She further found, pursuant to R.C. 2151.414(D)(1)(d), that a

legally secure placement for the children could not be achieved without a grant of

permanent custody, due to Ms. Toland’s failure to comply with her case plan. Great

emphasis was placed on Ms. Toland’s housing.

       {¶49} It is uncontroverted that the financially secure, certified foster parents’

home (with a per diem per child through a state subsidy) is a more stable home than

Ms. Toland’s, better physically and economically. This, however, is a comparison of




                                             12
apples and oranges: a home with superior economic resources and community support

will always be better in the eyes of the outside observer, such as attorneys, judges, and

guardians ad litem, as the benefits are quantitative and easily assessed. If utilized and

weighed on the ACCSB’s side of the ledger in determining best interests, it creates a

false choice and the reason for removal analysis mandated in the first prong of the

statute becomes a nullity. ACCSB’s single goal in seeking permanent custody is to

insure that children are adequately cared for and the reasons of removal have been

remedied – not to elevate the children to a higher economic standard at the expense of

the state and its taxpayers. Therefore, in considering the first prong of the test, the

primary task of the trial court is to focus narrowly on the reasons for removal and the

parent’s ability to remedy these reasons – not on the economic benefit of living in a

quantitatively superior environment. Otherwise, the permanent custody proceeding and

the best interests determination simply become a competition between which of two

homes provides the better standard of living for the children. This is not contemplated

by the statute, and is a competition the natural parent cannot often win.

      {¶50} The statute for establishing a case plan, R.C. 2151.412, is the vehicle, the

“contract,” whereby a parent can arrange with the state to remedy the reasons for

removal, with the goal of family reunification, after there has been a finding of

substandard care, or unsafe conditions. The case plan is the road map. The state’s

burden in overcoming the constitutional rights of both the children and the parent by

clear and convincing evidence is not easy, nor meant to be. Any hearing on a motion

for permanent custody must focus first, plainly and simply, on whether the parent has

remedied the reasons for removal and the specific reasons enumerated in the




                                            13
complaint. This permanent custody proceeding is the family law equivalent of the death

penalty. In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, ¶14. For it to have legal

and constitutional significance it cannot become a competition between whether foster

parents or ACCSB, with their superior resources, potentially providing children a more

stable atmosphere, versus the immeasurable and intangible love of a natural parent for

his or her child.

       {¶51} The primary reason presented by the record in this case for ACCSB

seeking permanent custody is Ms. Toland’s failure to comply with the case plan. This

begs the question of how many of the case plan’s requirements were meant to remedy

the reasons for removal, and how many were surplusage? ACCSB conceded at oral

argument and the record supports the view that the primary reason for removal was

domestic violence. There is overwhelming evidence this has been remedied. The

question remains whether evidence of non-compliance with the remaining elements of

the case plan – completing a parenting class – are connected to the reasons for

removal, and thus, prevents reunification. Simple failure to comply with a case plan,

when there is no evidence that the elements of the case plan not achieved were

relevant to the reasons for removal cannot, as a matter of law, be sufficient to overcome

the presumption that it is in the best interests of these children to remain in the custody

of their natural mother.   Ms. Toland had made only 22 of 35 potential visitations.

ACCSB carried the burden of proof: absent from the case plan and the record is any

standard showing how many visitations she was required to make to show compliance.

What were her reasons for failing to attend? Do these reasons relate to the reasons for

removal? The portions with which Ms. Toland did not comply contained in the record do




                                            14
not appear to relate to the original reasons for removal, or whether the children can be

placed at home with services.

       {¶52} The most compelling issue in this case, which brings me to vote with the

majority, is Ms. Toland’s refusal to take ACCSB’s offer of finding her suitable housing,

where she could live alone with the children, in a more secure environment than that

provided by her present housing, which is overcrowded, and where she lives with

several unrelated males.      The housing suggested by ACCSB would immediately

improve the safety and living conditions of the children. Ms. Toland’s housing choice

illustrates a lack of appreciation of the children’s best interests, violates their right to

grow up in a safe, secure environment, and casts serious doubt on Ms. Toland’s ability

to keep them safe and secure at a reasonable level going forward.            The rights of

parents are not absolute. Those rights carry with them equal responsibilities, one of

which is assuring their children live in a safe, stable environment, as best as the parent

can achieve.

       {¶53} I find ACCSB carried its burden under both prongs of the test for this

reason: her inability to provide these children with safe and stable housing.

       {¶54} I concur.

                                    ____________________



DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.

       {¶55} I agree with the decision to affirm the termination of Toland’s parental

rights, as she repeatedly failed to comply with critical case plan goals, provided an

unsafe living environment, and given the guardian ad litem’s recommendation that




                                            15
permanent custody be granted to ACCSB.           I write separately, however, to discuss

several important points that have not been adequately addressed in the opinion.

       {¶56} First, one of Toland’s main arguments in support of her best interest

analysis was the lack of a lengthy custodial history in this matter. ACCSB was granted

temporary custody of the children in December 2014 and moved for permanent custody

seven months later. It is noteworthy, however, that ACCSB had been involved with the

family since April 2014. More importantly, the decision to move for permanent custody

was based on Toland’s demonstration that she would not comply with the case plan or

accept the services that were offered to her. It is difficult to imagine how providing her

with extra time would be of benefit if she refused to utilize the services which would

allow her to improve her circumstances and the children’s lives. “[I]t was the General

Assembly’s purpose in establishing the present procedures for the termination of

parental rights ‘to prevent children from lingering in foster care.’” (Citation omitted.) In

re J.G., 11th Dist. Lake No. 2015-L-102, 2016-Ohio-896, ¶ 77.

       {¶57} Toland also makes the contention, which she placed great focus on in oral

argument, that her lack of income was a cause of the termination of her parental rights.

This argument must be addressed, as it is entirely unmeritorious. The trial court never

made any finding that Toland’s lack of financial resources rendered her an unsuitable

parent.   Toland’s failure to attend over one third of her visitation appointments with the

children had a great impact on them, regardless of her reasons for failing to attend.

This is direct evidence of a lack of commitment toward them pursuant to R.C.

2151.414(E)(4) and was not in their best interests.        Moreover, a lack of financial

resources does not explain Toland’s refusal to accept services that were offered to her




                                            16
by ACCSB. Toland could have utilized these services to improve her children’s lives but

chose not to do so. It must be emphasized that “‘the best interests and welfare of [the

children] * * * are of paramount importance.’” In re S.D., 11th Dist. Ashtabula No. 2014-

A-0063, 2015-Ohio-354, ¶ 30, citing In re Cunningham, 59 Ohio St.2d 100, 106, 391

N.E.2d 1034 (1979).

       {¶58} It is also necessary to emphasize the extent to which being placed with a

foster family has benefitted the children, especially B.T. The foster parents ensured

B.T. received necessary counseling. Significant concern was expressed by the ACCSB

caseworker that Toland had not done so and returning B.T. to her custody could result

in a disruption of her treatment. Such an important fact cannot be overlooked when it

comes to considering the children’s best interests.

       {¶59} Finally, it is essential to respond to the other concurring judge’s contention

that “the primary reason for removal was domestic violence” and the implication that this

should somehow absolve Toland from fulfilling some of the case plan requirements.

While the record indicates that the child abuse by Toland’s former boyfriend is no longer

at issue, this has no bearing on the validity of the trial court’s reasoning for its decision.

The children were removed from the home based on Toland’s failure to make progress

on her case plan, a point with which Toland’s counsel seemed to agree at oral

argument.    Rectifying the abuse situation is of questionable relevance, at best, to

whether the conditions causing removal of the children were remedied pursuant to R.C.

2151.414(E)(1).

       {¶60} Furthermore, even prior to the removal of the children and lack of

compliance with the case plan, there were significant concerns other than abuse, such




                                             17
as the children’s truancy during a period of time when they were living in a hotel.

Multiple ACCSB employees explained that truancy was the cause of the agency’s initial

involvement with the children. They also identified that housing was a concern at that

time, an issue which continues to persist. The various causes for ACCSB’s involvement

with the family more than justify creating multiple, relevant case plan goals. While the

other concurring judge questions what portion of the case plan goals must be completed

to avoid termination of parental rights, the trial court, as the fact-finder, must weigh all of

the factors on a case-by-case basis, as it properly did in the present matter.

       {¶61} As to the failure to remedy the concerns within the case plan, it is clear

that Toland failed to do so. She failed to complete a parenting class for C.T., and was

not compliant with mental health treatment.        Toland’s argument that her housing is

sufficient is unreasonable.        There was ample testimony regarding the living

circumstances that raised serious concerns. Multiple unrelated adults, some of which

were not permitted to have their own children living with them, resided in Toland’s

residence. The fact that those identified did not have criminal charges does not mean

that this type of environment is suitable for children. This is especially true given the

testimony that drug-related paraphernalia was seen within the home by a caseworker.

This was legitimately viewed as a serious concern by ACCSB as well as the trial court.

See In re J.L., 10th Dist. Franklin No. 15AP-889, 2016-Ohio-2858, ¶ 73 (permanent

custody was warranted when the parents had “poor decision-making” skills and “lack of

regard” for whom they allowed in the household).




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      {¶62} It is evident from the record that there were sufficient reasons to conclude

permanent custody must be granted to ACCSB.         In light of the many clarifications

outlined above, I concur in judgment only.




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