[Cite as In re S.D., 2016-Ohio-5442.]




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

 IN RE:                                         :
                                                :   Appellate Case No. 27008
               S.D., A.D., and S.D.             :
                                                :   Trial Court Case Nos. 2013-7176
                                                :   Trial Court Case Nos. 2013-7177
                                                :   Trial Court Case Nos. 2013-7178
                                                :
                                                :   (Juvenile Appeal from
                                                :    Common Pleas Court)
                                                :

                                          ...........

                                          OPINION

                            Rendered on the 19th day of August, 2016.

                                          ...........

MATHIAS H. HECK, JR., by MEAGAN D. WOODALL, Atty. Reg. No. 0093466,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
      Attorney for Appellant

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

FAIN, J.

        {¶ 1} R.D. appeals from a judgment of the Montgomery County Court of Common

Pleas, Juvenile Division, awarding permanent custody of her three children, S.D., A.D.,
                                                                                      -2-


and S.D.2, to Montgomery County Children Services (MCCS). She contends that the

evidence does not support a finding that the children cannot be placed with her within a

reasonable time, or that the children should not be placed with her. She further contends

that the evidence does not support a finding that awarding permanent custody to MCCS

is in the best interest of the children.

       {¶ 2} We conclude that there is clear and convincing evidence in the record to

support the judgment. The record reveals that the children had been in the custody of

MCCS for more than twelve months preceding the filing of the complaint for permanent

custody, and that the best interest of the children is served by awarding permanent

custody to the Agency. Accordingly, the judgment of the juvenile court is Affirmed



                               I. The Course of Proceedings

       {¶ 3} R.D. is the biological mother of S.D., A.D., and S.D.2. In October 2013,

MCCS filed a complaint alleging that the children were neglected and dependent.

According to the complaint, MCCS had been involved with the family for several months.

MCCS alleged that R.D. was living with her children “in deplorable housing conditions * *

* [with] trash and rotting food throughout the home. The home was infested with rats,

mice and bed bugs. The home had no running water, the toilet had feces in it but could

not be flushed.” The Agency alleged that R.D. failed to stay in contact with the Agency,

and moved the kids into a small apartment, from which they were evicted; at which point

the children began living with relatives, and R.D. began living with a friend.       The

children’s father was released from prison following a felony Domestic Violence

conviction, and became re-involved with the family.     According to the Agency, R.D.
                                                                                         -3-


abuses drugs, and was reported by family members to be engaged in prostitution.

       {¶ 4} Temporary custody of the children was awarded to MCCS in October 2013,

at which time they were placed with a relative. Following a hearing, the children were

adjudicated dependent by order filed January 14, 2014. A case plan was developed,

which required R.D. to obtain and maintain stable housing and income, complete a

drug/alcohol assessment with any required follow-up care, submit to unannounced home

visits and random drug screens, and sign releases permitting MCCS to access her

information. The children stayed with the relative until June 2014, when they were

placed in foster care.

       {¶ 5} On September 25, 2015, MCCS moved for permanent custody. A hearing

was held in January 2016, at which time S.D. was 15, A.D. was 14, and S.D.2 was 12.

At the start of the hearing on the motion, the children’s father appeared, with counsel, and

voluntarily relinquished his parental rights to the children. Following the hearing, the

juvenile court found that it was in the best interest of the children to award permanent

custody to MCCS.

       {¶ 6} R.D. appeals.



      II. There Is Evidence in the Record to Support the Trial Court’s Finding

                    Concerning the Best Interests of the Children

       {¶ 7} R.D.’s sole assignment of error states as follows:

              THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN

       GRANTING PERMANENT CUSTODY TO MONTGOMERY COUNTY

       CHILDREN SERVICES, AS THE AGENCY FAILED TO PROVE BY CLEAR
                                                                                           -4-


       AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN

       THE BEST INTEREST OF THE CHILDREN AND THAT THE CHILDREN

       COULD NOT BE PLACED WITH MOTHER WITHIN A REASONABLE

       PERIOD OF TIME OR SHOULD NOT BE PLACED WITH MOTHER.

       {¶ 8} R.D. contends that the juvenile court’s decision regarding the best interest of

the children is not supported by the evidence. She further contends that there was

insufficient evidence to establish that the children could not be placed with her within a

reasonable time, or should not be placed with her.

       {¶ 9} It is undisputed that the children had been in the custody of MCCS for twelve

or more months of a consecutive 22 month period. Under these circumstances, R.C.

2151.414(B)(1)(d) permits the court to grant permanent custody to MCCS if the court

determines at a hearing held pursuant to R.C. 2151.414(A), “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 * * *.” “Where children have

been in agency custody for the required time, the agency does not have to establish that

the child cannot be placed with a parent within a reasonable time or should not be placed

with a parent. The only consideration is the child's best interests.” In re A.U., 2d Dist.

Montgomery Nos. 20583, 20585, 2004-Ohio-6219, at ¶ 26. Thus, we need not address

the issue of whether the juvenile court erred by finding that the children could not be

placed with R.D. within a reasonable time, or should not be placed with her; the trial court

was not required to make that finding. Nor does including that superfluous finding in its

findings render the decision invalid. In re S.H., 2d Dist. Montgomery Nos. 24619, 24644,

2011-Ohio-4721, ¶ 9.
                                                                                            -5-




      {¶ 10} The issue to be determined then, is whether the award of permanent

custody to MCCS is in the best interest of the children. To make that finding, the juvenile

court must examine the factors set forth in R.C. 2151.414(D). Those factors include:

               (a) The interaction and interrelationship of the child with the child's

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

      and any other person who may significantly affect the child;

               (b) The wishes of the child, as expressed directly by the child or

      through the child's guardian ad litem, with due regard for the maturity of the

      child;

               (c) The custodial history of the child, including whether the child has

      been in the temporary custody of one or more public children services

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

      consecutive twenty-two-month period, * * *;

               (d) The child's need for a legally secure permanent placement and

      whether that type of placement can be achieved without a grant of

      permanent custody to the agency; [and]

               (e) Whether any of the factors in divisions (E)(7) to (11) of this section

      apply in relation to the parents and child.

      {¶ 11} We conclude that the juvenile court’s best-interest finding demonstrates

proper consideration and application of the factors listed above.            The children are

bonded with R.D. All three children expressed the desire to be with their mother. The trial

court’s decision recommended the continuation of visitation between R.D. and the
                                                                                        -6-


children following an award of custody to MCCS.

       {¶ 12} But the evidence in the record is that the children are doing well in their

foster placements, and that all three are bonded with their foster families. S.D.2 and A.D.

live in the same home, while S.D. is in a separate foster home. The children attend the

same school system, and see each other on a regular basis. All three are doing well in

school. S.D. and A.D. are involved in extracurricular activities. While S.D.2 appeared

to be unhappy that she is not living with her mother, both she and A.D. expressed the

desire to remain in their current placement in order to complete the school year. Also,

A.D. was afraid of losing his current placement if his mother was unable to maintain

custody. The special needs of S.D. and A.D. are being appropriately met by the foster

families. The guardian ad litem appointed for the children recommended that custody be

awarded to MCCS.

       {¶ 13} The juvenile court found that the children had been in the temporary custody

of MCCS for more than 12 out of 22 months.           Indeed, at the time the motion for

permanent custody was filed, the children had been in the temporary custody of MCCS

for almost two years.

       {¶ 14} The trial court noted that R.D. had failed to comply with her case plan. At

the hearing, she admitted that she continued to use marijuana and alcohol, but denied

any other drug use. Following each of three random drug screens, she agreed, but

failed, to undergo treatment, despite appropriate referrals. Although living in appropriate

housing, which she claimed to be leasing, she failed to produce a lease to verify the

stability of the housing. She also failed to provide verification of income.

       {¶ 15} The children have been in the custody of MCCS for over two years, and are
                                                                                      -7-


in need of a legally secure placement. No relatives are available for placement, and R.D.

has failed to correct the issues that caused the removal of the children, despite

appropriate referrals and services.

       {¶ 16} We conclude that the record contains evidence sufficient to meet the clear

and convincing standard set forth in R.C. 2141.414(B) with regard to whether a grant of

permanent custody to an agency is in the best interest of the children. Accordingly,

R.D.’s sole assignment of error is overruled.



                                      III. Conclusion

       {¶ 17} R.D.’s sole assignment of error having been overruled, the judgment of the

trial court is Affirmed.

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



FROELICH and HALL, JJ., concur.


Copies mailed to:

Mathias H. Heck, Jr.
Meagan D. Woodall
Jeffrey Gramza
Hon. Nick Kuntz
