[Cite as In re C.D., 2019-Ohio-4911.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




IN RE:                                            :

         C.D.                                     :      CASE NO. CA2019-02-014

                                                  :               OPINION
                                                                   12/2/2019
                                                  :




           APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                            JUVENILE DIVISION
                           Case No. 2017 JC 4950



D. Vincent Faris, Clermont County Prosecuting Attorney, Nick Horton, 76 South Riverside
Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

Alexander, Wagner & Kinman, Jesse D. Bowman, 423 Reading Road, Mason, Ohio 45040,
for appellant



         PIPER, J.

         {¶ 1} Appellant, T.W. ("Mother"), appeals a decision of the Clermont County Court of

Common Pleas, Juvenile Division, granting permanent custody of her child, C.D., to Clermont

County Department of Job and Family Services, Children Services Division ("the Agency").

         {¶ 2} Mother has a history of drug addiction that rendered her unable to care for C.D.,

who was 16 years old at the time of the proceedings. Given Mother's inability to care for

C.D., he often lived with his aunt. The child had a history of his own drug usage, as well as
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delinquency contacts including theft, violation of court orders, disorderly conduct, and

attempted breaking and entering and vandalism. When C.D.'s aunt could no longer care for

him, the child's Guardian Ad Litem ("GAL") filed a complaint in March 2017 alleging that C.D.

was a dependent child. The juvenile court granted temporary custody of the child to the

Agency.

         {¶ 3} During an adjudication hearing, Mother admitted to the allegations in the

complaint that she, C.D.'s aunt, and C.D.'s father were unable to care for the child.1 The

juvenile court thus ruled that C.D. was dependent and ordered at disposition that the child

remain in the temporary custody of the Agency. In May 2018, the Agency filed a motion for

permanent custody.

         {¶ 4} Throughout the pendency of the proceedings, C.D. lived in a therapeutic foster

home, a detention center, a youth academy, and Buckeye Ranch, which provides emotional,

behavioral, and mental health services for children. After running away from his therapeutic

foster home, C.D. was apprehended and placed in detention. He later transferred to the

Marsh Foundation, which provides intensive treatment services to address a variety of

behavioral and emotional issues.

         {¶ 5} During this time, Mother was provided a case plan that included parental

education, substance abuse treatment, resource management, and household maintenance.

However, she did not complete the case plan items, and did not have visitation with the child

through the Agency.

         {¶ 6} The magistrate ordered a hearing on the Agency's permanent custody motion,

which Mother did not attend. At the hearing, Mother's counsel moved for a continuance, but

could not explain why Mother was not present. The juvenile court denied the motion for a



1. Father did not file a brief with this court.

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continuance and the hearing occurred as planned. Mother later explained that she overslept

and was thus absent from the proceeding. Although the court did not grant her counsel's

request for a continuance, the court allowed Mother to later present her testimony, as well as

testimony from the child and the child's father.

       {¶ 7} The magistrate granted the Agency's motion for permanent custody. While

Mother filed objections to the magistrate's permanent custody decision, she did not object to

the magistrate's decision denying a continuance. The juvenile court overruled Mother's

objection and affirmed the grant of permanent custody to the Agency. Mother now appeals

the juvenile court's decision, raising the following assignments of error.

       {¶ 8} Assignment of Error No. 1:

       {¶ 9} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING

THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE CHILD BECAUSE

THIS FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 10} Mother argues that the juvenile court erred by granting permanent custody of

her child to the Agency because such was not in the child's best interest.

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

and custody of his or her 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. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11. An appellate court's

review of a juvenile court's decision granting permanent custody is generally limited to

considering 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. This court will not reverse a juvenile court's decision to grant permanent

custody unless there is a sufficient conflict in the evidence presented. In re K.A., 12th Dist.



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Butler No. CA2016-07-140, 2016-Ohio-7911, ¶ 10.

       {¶ 12} Even if the juvenile court's decision is supported by sufficient evidence, "an

appellate court may nevertheless conclude that the judgment is against the manifest weight

of the evidence." In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.

When determining whether a juvenile court's decision is against the manifest weight of the

evidence in a permanent custody case, an appellate 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 St.3d 328, 2012-Ohio-2179, ¶ 20.

       {¶ 13} The presumption in weighing the evidence is in favor of the finder of fact, which

we are especially mindful of in custody cases. In re C.Y., 12th Dist. Butler Nos. CA2014-11-

231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. Therefore, "[i]f the

evidence is susceptible of more than one construction, the reviewing court is bound to give it

that interpretation which is consistent with the verdict and judgment, most favorable to

sustaining the verdict and judgment." Eastley at ¶ 21.

       {¶ 14} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

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 juvenile 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.

Among others, these factors include the interaction and interrelationship of the child with the

child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other



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person who may significantly affect the child, the wishes of the child, the custodial history of

the child, and the child's need for a legally secure permanent placement.

       {¶ 15} Second, pursuant to R.C. 2151.414(B)(1)(a) thru (e), the juvenile court must

find that one of five circumstances apply to the child, such as that the child has been

abandoned, orphaned, or been in an agency's temporary custody for 12 months of a

consecutive 22-month period. In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-

Ohio-3709, ¶ 10. Only one of these findings must be met to satisfy the second prong of the

two-part permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-

Ohio-3188, ¶ 12.2

       {¶ 16} After reviewing the record, we find that the juvenile court's decision to grant

permanent custody of C.D. to the Agency was not against the manifest weight of the

evidence and that there is clear and convincing evidence that granting permanent custody is

in the best interest of the child.

       {¶ 17} Regarding the relationship between C.D. and his parents, the record indicates a

history of instability, with neither parent maintaining a consistent presence in the child's life

due to drug addiction and criminal activity. Father testified that he had an addiction to heroin,

spent time in prison for grand theft, and lived under a bridge at some point. He admitted that

the last time he saw C.D. was in 2015.

       {¶ 18} Mother testified that she was on community control for possessing heroin, and

that she had violated the terms of her community control six or seven times. Mother admitted

she was addicted to heroin, but claimed sobriety for two years as of the time of the hearing.

However, and despite her claimed sobriety, Mother never initiated visitation with her son

through the Agency. Instead, Mother admitted that she would have contact with the child


2. Mother does not contest that C.D. has been in the custody of the agency for at least 12 months out of a
consecutive 22-month period.

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when he would run away from his placements, despite there being a no-contact order in

place.3 She also would not inform the Agency of C.D.'s whereabouts during the time he was

on the run.        Mother also testified that despite her sobriety, she had inappropriate

conversations with C.D., including text messages commenting on the size of C.D.'s penis and

C.D. whipping his girlfriend during a sexual encounter.

        {¶ 19} Regarding the child's wishes, C.D.'s GAL testified that the child wanted to

reunify with Mother, but also understood the unlikelihood of that occurring. The child told his

GAL that he wanted to be placed in a foster care home closer to his biological family, and the

GAL ultimately recommended that the Agency have permanent custody.

        {¶ 20} Regarding the child's custodial history, and as noted above, the child had been

living with his aunt before the Agency became involved due to Mother's inability to care for

C.D. The record indicates that Mother, who had a perpetual substance abuse problem, was

instructed through her case plan to go through a substance abuse assessment before

receiving treatment for her addiction. However, Mother did not complete the required

assessment. Nor did Mother keep in contact with her caseworker, who testified that she and

Mother had no contact from September 25, 2017 through May 30, 2018.

        {¶ 21} Regarding the child's need for a legally secure permanent placement, Mother

testified that she was working as a waitress and lived in a home with her fiancé that had room

for C.D. However, given that Mother lives with her fiancé, she cannot guarantee the stability

of her housing or her situation should Mother separate from her fiancé.

        {¶ 22} The caseworker testified that C.D. had been diagnosed with several medical

and psychological issues, as well as drug usage, and had been placed in several different

living situations such as therapeutic foster homes, youth academies, and detention centers.


3. The record does not contain information regarding the no-contact order, other than it was executed prior to the
Agency gaining temporary custody, and that it remained in place during the proceedings.

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C.D. had tested positive for THC, methamphetamine, and oxycodone, and was placed at a

foundation to help him with substance abuse treatment, mental health treatment, and

independent living skills. Mother admitted that C.D. had issues with substance abuse, and

that he needed treatment. However, Mother failed to pay child support for C.D. and the

record does not indicate that Mother would pay for any such treatment C.D. would require.

       {¶ 23} While Mother may have been making strides regarding her drug addiction and

ability to care for herself and C.D., the record demonstrates that she is not capable of

consistently providing C.D. with a healthy environment. Despite Mother's claims regarding

sobriety, the juvenile court questioned Mother's credibility and noted that she disappeared for

nine months after completing a drug rehabilitation program. Moreover, Mother has failed to

follow up with the necessary drug assessment, take parenting classes, or adhere to the terms

of her community control. Nor did Mother obey the no-contact order, and she further refused

contact with the Agency through her caseworker.

       {¶ 24} Conversely, the Agency has the necessary resources to provide behavioral and

health services to the child. The juvenile court specifically noted that these services are

"essential to C.D.'s ability to mature and maximize his potential as an adult." The balancing

of these factors indicate that granting permanent custody of the child to the Agency is in

C.D.'s best interest, especially when considering the child's need for ongoing medical and

mental health services, substance abuse treatment, and services to help him transition into

adulthood.

       {¶ 25} After reviewing the record, we find the juvenile court's decision was supported

by clear and convincing evidence and that such decision was not against the manifest weight

of the evidence. As such, Mother's first assignment of error is overruled.

       {¶ 26} Assignment of Error No. 2:



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       {¶ 27} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY DENYING

APPELLANT'S REQUEST FOR A CONTINUANCE BECAUSE THIS RULING WAS

UNREASONABLE AND ARBITRARY.

       {¶ 28} Mother argues in her second assignment of error that the juvenile court erred

by not granting her request for a continuance.

       {¶ 29} The juvenile rules require written objections to a magistrate's decision. Juv.R.

40(D)(3)(b)(i). "Except for a claim of plain error, a party shall not assign as error on appeal

the court's adoption of any factual finding or legal conclusion * * * unless the party has

objected to that finding as required by Juv.R. 40(D(3)(b)." Juv.R. 40(D)(3)(b)(iv). Plain error

is only found in "exceptional circumstances" where the error seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself. In re B.J. & L.J, 12th Dist. Warren Nos.

CA2016-05-036 and CA2016-05-038, 2016-Ohio-7440, ¶ 61.

       {¶ 30} Mother did not appear for the permanent custody hearing, and her attorney

could not explain Mother's absence to the juvenile court. Mother's attorney moved for a

continuance, but the juvenile court denied the request. The court reasoned that the state

was ready to proceed, witnesses were present, and it was unclear as to whether Mother

would ever appear.       Although the court denied the continuance, Mother's attorney

participated in the hearing by questioning witnesses and presenting arguments on Mother's

behalf. Moreover, the court did permit Mother, the child's father, and C.D. to testify at a later

hearing. As such, the juvenile court's decision to deny the continuance did not impact the

fairness or legitimacy of the proceedings, as Mother was able to present her reasons why

permanent custody should be denied to the Agency. Mother's second assignment of error is

therefore overruled.



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{¶ 31} Judgment affirmed.


HENDRICKSON, P.J., and RINGLAND, J., concur.




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