[Cite as In re B.B., 2011-Ohio-2679.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    GREENE COUNTY

IN THE MATTER OF:                              :
                                               :
        B.B., L.B., J.B. and A.C.              :     Appellate Case No. 2010-CA-68
                                               :
                                               :     Trial Court Case Nos. N40828
                                               :     Trial Court Case Nos. N40869
                                               :     Trial Court Case Nos. N40920
                                               :
                                               :     (Juvenile Appeal from
                                               :     (Common Pleas Court)
                                               :
                                            ...........

                                            OPINION

                                Rendered on the 3rd day of June, 2011.

                                            ...........

STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg.
#0074882, Greene County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorneys for Appellee, State of Ohio

JENNIFER S. GETTY, Atty. Reg. #0074317, 46 East Franklin Street, Centerville, Ohio 45459
     Attorney for Appellant, I.C.

ALAN COLLINS, Atty. Reg. #0062915, 864 Trent Close, Springfield, Ohio 45505
     Attorney for Minor Children

ROBERT HENDRIX, Atty. Reg. #0037351, 87 South Progress Drive, Xenia, Ohio 45385
     Attorney for Appellee, L.B., Sr.

SUE RODERICK, 2100 Greene Way Boulevard, Xenia, Ohio 45385
     Guardian Ad Litem

                                                      .............

HALL, J.
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       {¶ 1} Appellant I.C. appeals the judgment of the Greene County Juvenile Court

granting permanent custody of A.C. and J.B. to the Greene County Children Services Board.

We affirm.



                                      I. The Children

       {¶ 2} A.C., born July 14, 2005, and J.B., born January 3, 2009, are the daughters of

I.C. Their paternity is unknown. The girls have an older brother, L.B., born May 2, 2001, and

an older sister, B.B., born November 13, 1999, who are the children of I.C. and L.B., Sr. In

December 2008, B.B., L.B., and A.C. were removed from their home and placed in the

temporary custody of Children Services, which has been involved with the family since 2003.

The reasons they were removed were primarily I.C.’s and L.B., Sr.’s drug abuse that has

resulted in their failure to be adequate parents. On the morning of January 3, 2009, J.B. was

born with a high level of cocaine in her system. Later that day, J.B., too, was placed in

Children Services’ temporary custody. The following month, the children were adjudicated

dependent. See R.C. 2151.04 (defining “dependent child”). The children were placed in foster

homes, and Children Services developed a case plan for the family. The plan required I.C. to

stop using drugs, be assessed for substance abuse and mental heath treatment and comply with

any recommendations, submit to random drug screens, complete parenting classes, and visit

with her children.

       {¶ 3} Nine months later, in November 2009, Children Services moved to secure

permanent custody of the children. A hearing took place in the juvenile court at which

Children Services presented the testimony of several witnesses. The testimony revealed that,

since she lost custody of her children, I.C. had failed to complete treatment for drug abuse,
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despite being assessed and reassessed multiple times and each time being recommended for

treatment. Testimony further revealed that random drug screens over the preceding 14 months

showed that I.C. continued to use drugs. I.C. had, though, completed parenting classes and

visited with her children. The result of this first motion for permanent custody was that the

juvenile court denied Children Services’ motion, determining that permanent custody was not

in the children’s best interest. While I.C. had not fully complied with her case plan, said the

court, she had achieved some of the plan’s goals, and she was interested in achieving full

compliance. The court said that it would give I.C. an opportunity to demonstrate her full

commitment to her children.

       {¶ 4} Two months later, in May 2010, Children Services again moved to secure

permanent custody. A hearing took place in September 2010. At the start of the hearing, the

parties agreed that, in making its determination, the court could consider the evidence that was

presented at the March hearing. Children Services then presented the testimony of several

witnesses. J.B.’s foster mother, K.S., testified about the extent of J.B.’s significant medical

issues. The court heard that J.B. has serious vision impairments. Her physical development is

delayed, and she receives physical therapy each week. J.B.’s speech is also delayed, and she

receives speech therapy each week. The court also heard about J.B.’s feeding problems

stemming from a hypersensitivity of the mouth and a hyperactive gag reflex. K.S. said that she

must carefully monitor J.B.’s food intake to ensure that she gets enough calories each day. For

her feeding problems, J.B. receives occupational therapy each week and takes medication to

help stimulate her appetite, which K.S. gives her twice daily. K.S. testified that, if the

opportunity arose, she and her family would be interested in adopting J.B.

       {¶ 5} The court also heard testimony from I.C.’s caseworker and social worker. They
                                                                                               4


testified that, since the first permanent-custody hearing, I.C.had continued to test positive for

drugs. In the six months between the hearings, I.C. was clean only three times. They further

testified that I.C. failed to submit to a majority of the drug screens that Children Services tried

to administer. A case aide testified that on at least two occasions I.C. simply refused to be

screened and admitted that a drug test would be positive. As recently as the month before the

September hearing, I.C.’s caseworker testified, she submitted to only four of the nine drug

screens requested. And all four came back positive–one showing that I.C. had recently used

cocaine. At the time of the hearing, I.C. was pregnant with her fifth child.

       {¶ 6} The court further heard that I.C. had still not completed treatment for her drug

abuse. Since the March hearing, I.C. was assessed twice more at TCN Behavioral Health

Center, and each time she was recommended for treatment but never completed it. Also, I.C.

again got into Women’s Recovery Center and was supposed to be admitted on August 25,

2010. She was not admitted, though, because she had tested positive for a drug cocktail of

benzodiazapine, marijuana, and cocaine.

       {¶ 7} There was also testimony that I.C.’s drug abuse has resulted in a decrease of

visits with her children. Sometimes she did not show up. More often, the caseworker canceled

visits because I.C. had tested positive for drugs.

       {¶ 8} This time, the juvenile court granted Children Services’ motion, at least in part.

The court determined that permanent custody was not in the best interest of B.B. and L.B. and

with respect to them denied the motion. But permanent custody was in the best interest of

A.C. and J.B., the court determined, and it granted the agency’s motion accordingly. I.C.

appealed and now presents two assignments of error.
                                                                                              5


                                    II. Permanent Custody

A. “Reasonable time”

        {¶ 9} In her first assignment of error, I.C. argues that the juvenile court abused its

discretion by determining that A.C. and J.B. could not be placed with her within a “reasonable

time,” pursuant to R.C. 2151.414(B)(2). Division (B)(2) of section 2151.414 does not apply in

this case.

        {¶ 10} Division (B)(2) of section 2151.414 states that a juvenile court must grant

permanent custody of a child to the state if the court determines that the child either cannot be

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

determines that permanent custody is in the child’s best interest. But division (B)(2) applies

only “[w]ith respect to a motion made pursuant to division (D)(2) of section 2151.413.” R.C.

2151.414(B)(2). Division (D)(2) of section 2151.413 directs the state to move for permanent

custody if a juvenile court determines that reunifying the child with the parent is no longer the

goal. Here, such a determination was not made by the juvenile court before the state filed its

motion. We note that the court did not say that it was acting pursuant to division (B)(2).

Indeed, while some of the decision’s language suggests such a determination, the court never

said that A.C. and J.B. cannot be placed with I.C. within a reasonable time or should not be

placed with her.

        {¶ 11} Rather, the court acted under division (B)(1) of section 2151.414, the division

on which Children Services expressly based its motion. Division (B)(1) provides that a court

may grant permanent custody to the state if the court determines, by clear and convincing

evidence, that permanent custody is in the child’s best interest “...and that any of the following

apply:...” (Emphasis added) This section requires the court to determine, again by clear and
                                                                                             6


convincing evidence, that at least one of four enumerated circumstances applies. Although the

first circumstance in (B)(1)(a) requires, like division (D)(2), that a parent placement cannot be

made within a “reasonable time,” that “reasonable time” for parental placement only applies if

the child has not been in the temporary custody of a public services agency for 12 or more

months of a consecutive 22-month period. The juvenile court expressly found (a finding that is

supported by the record) that the children in this case have been in Children Services’

temporary custody for more than 12 months of the prior 22-month period. Therefore the

circumstance of R.C. 2151.414(B) that applies here is, the fourth, (B)(1)(d). That section

provides for permanent custody to be determined in the child’s best interest if the child has

been in the temporary custody of a public children services agency for 12 or more months of a

consecutive 22-month period, without the necessity of a finding that parental placement

cannot be accomplished in a “reasonable time.”

       {¶ 12} Therefore, as the state contends, the only question in this case is whether

permanent custody is in the children’s best interest. See In re J.W., Franklin App. Nos.

06AP-864, 06AP-1062, 06AP-875, 2007-Ohio-1419, at ¶15 (“Because the record supports the

trial court’s decision to proceed under R.C. 2151.414(B)(1)(d), the trial court did not need to

determine whether the child can or should be placed with either parent after a reasonable

time.”), citing In re Lopez, 166 Ohio App.3d 688, 2006-Ohio-2251, at ¶27-29 (“[U]nder R.C.

2151.414(B)(1)(b) through (d), the trial court is required only to determine whether the grant

of permanent custody is in the best interests of the child.”) (Citation omitted.).

       {¶ 13} The first assignment of error is overruled.



B. “Best interest” of the children
                                                                                                7


       {¶ 14} In the second assignment of error, I.C. argues that the juvenile court’s

determination that permanent custody is in A.C.’s and J.B.’s best interest is contrary to the

manifest weight of the evidence. We will not overturn a court’s grant of permanent custody to

the state because it is contrary to the manifest weight of the evidence “if the record contains

competent, credible evidence by which the court could have formed a firm belief or conviction

that the essential statutory elements * * * have been established.” In re A.U., Montgomery

App. No. 22287, 2008-Ohio-187, at ¶9 (Citations omitted.).

       {¶ 15} In determining what is in the best interest of the child, the juvenile court must

consider all relevant factors, including, but not limited to, these: (1) the child’s interaction and

interrelationship with parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child, (2) the wishes of the child, (3) the

child’s custodial history, including whether the child has been in the temporary custody of a

public children services agency for 12 or more months of a consecutive 22-month period, and

(4) the child’s need for a legally secure permanent placement and whether such a placement

can be obtained without granting permanent custody. R.C. 2151.414(D)(1)(a) through (d). In

addition, the court must consider whether the parent has been convicted of certain offenses,

has withheld medical treatment or food, has placed the child at substantial risk of harm two or

more times due to alcohol or drug abuse and has rejected treatment or refused to participate in

further treatment two or more times, has abandoned the child, or has had parental rights to a

sibling of the child involuntarily terminated. R.C. 2151.414(D)(1)(e) (referring to the factors

in R.C. 2151.414(E)(7) through (11)).

       {¶ 16} In this case, the testimony showed I.C. continued to abuse drugs and that abuse

has affected her ability to care for her children. The developed case plan had required I.C. to
                                                                                             8


abstain from drug use, to be assessed for substance abuse and mental health treatment and

comply with any treatment recommendations, to submit to drug screens, to complete parenting

classes, and to visit with the children. In the almost two years since the children were

removed, I.C. completed only parenting classes. She failed to complete substance-abuse

treatment, despite the efforts of Children Services to help. She failed to submit to drug

screens. Those screens to which she did submit revealed that I.C. continued to use drugs even

though she was pregnant with another child, and even though she had been told about J.B.’s

serious medical issues. The effect of her continued drug abuse on her ability to parent her

children is evident from the failure to even visit with her children on many occasions.

       {¶ 17} In addition to relying on the professional testimony and opinions in support of

permanent custody, the juvenile court considered the relevant statutory factors. The court

found that during the visits she did have with A.C., I.C. interacted appropriately with her, and

appeared to have a positive relationship with her. The court recognized that A.C. has

expressed her wish to be reunited with I.C. The court noted that J.B.–too young to express her

wishes–has lived in the same foster home since she was three days old and has become

integrated with the family. The court further noted that she has a variety of special physical

and medical needs that her foster parents are making sure to meet. Furthermore, the foster

parents are interested in adopting J.B. The court found that there are no suitable relatives with

whom the children could be placed. And, as noted above, the court found that the children

have been in Children Services’ temporary custody for over 12 of the past 22 months.

       {¶ 18} I.C. has a significant drug-abuse problem that has affected her parenting, and,

said the court, she has not shown any commitment to resolve it. Despite Children Services’

reasonable case plan and diligent efforts to help her, the court said, I.C. has failed
                                                                                             9


continuously and repeatedly to substantially remedy the conditions that lead to the children’s

being removed from her home. The juvenile court concluded that clear and convincing

evidence demonstrated that it is in the best interest of A.C. and J.B. to be placed in Children

Services’ permanent custody. We note that, while the court did not find the same for B.B. and

L.B., the court did order that Children Services no longer try to reunite them with I.C.. Rather,

the court ordered that the case plan be amended to focus efforts solely on reunifying B.B. and

L.B. with their father, L.B., Sr. The court said that the plan should include the goal that L.B.,

Sr. have stable housing without the presence of I.C.

        {¶ 19} We conclude that the juvenile court had sufficient evidence to support its

determination that permanent custody to Greene County Children Services was in A.C.’s and

J.B.’s best interest.

        {¶ 20} The second assignment of error is overruled. The judgment of the juvenile

court is Affirmed.

                                                   .............

FAIN, J., and FROELICH, J., concur.



Copies mailed to:

Stephen K. Haller
Elizabeth A. Ellis
Jennifer S. Getty
Alan Collins
Robert Hendrix
Sue Roderick
Hon. Robert W. Hutcheson
