[Cite as In re J.H., 2020-Ohio-4026.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



                                                   JUDGES:
                                                   Hon. John W. Wise, P. J.
IN THE MATTER OF:                                  Hon. Patricia A. Delaney, J.
                                                   Hon. Craig R. Baldwin, J.

        J.H. and P.H.                              Case Nos. 19 CA 00022 and
                                                             19 CA 00023

                                                   OPINION




CHARACTER OF PROCEEDING:                       Civil Appeal from the Court of Common
                                               Pleas, Juvenile division, Case Nos. 2016 C
                                               250 and 2016 C 251


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        August 10, 2020



APPEARANCES:

For Appellant Mother                            For Appellee

JAMES S. SWEENEY                               JESSICA L. MONGOLD
285 South Liberty Street                       Post Office Box 502
Powell, Ohio 43065                             Lancaster, Ohio 453130

Guardian Ad Litem

SANDRA L. BRANDON
Post Office Box 160
Rockbridge, Ohio 43149
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                          2


Wise, J.

       {¶1}   Appellant-Mother appeals the November 4, 2019, decision of the Perry

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

privileges, and responsibilities with respect to her minor children J.H. and P.H. and

granting permanent custody of the children to Appellee Perry County Children Services.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Appellant B.B. is the biological mother of two children: J.H. (DOB

10/14/2013) and P.H. (DOB 6/25/2010). J.H. is the biological father of both children.

Paternity was established by genetic testing. (T. at 94). Father did not attend the hearing

on the motion for permanent custody and has not appealed the trial court's decision.

       {¶3}   On August 9, 2016, Perry County Children Services (PCCS) became

involved with the family based on allegations of drug possession and abuse by Appellant-

Mother arising out of an incident in which Appellant-Mother and Father appeared to be

under the influence at a gas station. This eventually resulted in a traffic stop of the vehicle

in which Appellant-Mother, Father, P.H. and J.H. were riding. During this traffic stop the

driver of the vehicle was charged with OVI, Father was arrested on a non-support warrant,

and Appellant-Mother was found with methamphetamine, prescription drugs, and drug

paraphernalia on or about her person. (Complaint, Pg. 2-3).

       {¶4}   On August 10, 2016, Appellant-Mother signed a Temporary Care

Agreement. (T. at 95).

       {¶5}   On August 19, 2016, a complaint was filed in Case No. 2016-C-251 alleging

that P.H. was a dependent child. On the same date, another complaint was filed in Case
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                        3


No. 2016-C-250 alleging that J.H. was an abused child. Temporary custody of both

children was granted to Perry County Children's Services. (PCCS). (T. at 95).

       {¶6}   On August 30, 2016, Appellant-Mother signed an extension of the

Temporary Care Agreement. Id.

       {¶7}   On November 1, 2016, the minor children were adjudicated and placed in

the temporary custody of a relative. Id.

       {¶8}   On June 16, 2017, Perry County Children Services received temporary

custody of J.H. (T. at 96).

       {¶9}   On July 20, 2017, Perry County Children Services received temporary

custody of P.H. Id.

       {¶10} The minor children remained in the temporary custody of Perry County

Children Services from those dates until the date of the oral hearing on the motion seeking

permanent custody on September 4, 2019. Id.

       {¶11} On March 6, 2018, Perry County Children Services filed motions seeking

permanent custody of P.H. and J.H.

       {¶12} On May 16, 2018, a hearing was held on the motions for permanent

custody.

       {¶13} On June 28, 2018, the trial court granted the motions for permanent

custody, and Mother appealed the decision.

       {¶14} On January 17, 2019, this Court reversed and remanded the trial court's

decision "with instructions for the court to appoint a GAL to represent the interests of J.H.

and P.H. and to conduct further proceedings consistent with this opinion."
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                         4


       {¶15} On September 4, 2019, a second hearing on the motions seeking

permanent custody was held. At said hearing, the trial court heard testimony from Daniel

Kelty and Tracy Milner – licensed social workers, Kim Hardin – a drug and alcohol

counselor, Regina Yost – a substance use disorder clinical manager, Emily Earle – a

senior outpatient clinician, Kelly Valentine and Lacy Bateson – ongoing caseworkers with

PCCSS, Melissa Kennedy a drug court probation officer, Appellant-Mother BB, and the

Guardian ad Litem Sandra Brandon.

       {¶16} Daniel Kelty testified that he is an independent social worker licensed in the

State of Ohio who specializes in play therapy. (T. at 12). He testified that he began

working with P.H. and J.H. approximately two and a half years before the hearing on the

motion for permanent custody, and that his last sessions with the children took place on

February 8, 2019, because he switched jobs. (T. at 13-14). He explained that he

diagnosed J.H. “with an adjustment disorder with ruling out of attachment”. (T. at 14). At

the time of J.H.'s diagnosis, Mr. Kelty observed some red flags regarding J.H.'s

attachment and continued to monitor his attachment. Id. He testified that over the course

of counseling with J.H., he had observed the minor child become less anxious and less

dependent upon his sibling, P.H., for instruction and less dependent on P.H. for

containment of his emotions. (T. at 19).

       {¶17} Mr. Kelty diagnosed P.H. “with attachment disorder and anxiety”, in part due

to her parentified relationship with J.H. (T. at 14-15). He explained that P.H.'s inability to

relate well to peers, difficulty attaching with caregivers and adults, being overly clingy,

needy and having successive distant relationships, acting out behaviors, and her

parentified relationship with J.H. led to her diagnoses. (T. at 14-15). He further explained
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                       5


that when a child is diagnosed with attachment disorders as a result of abuse/neglect,

oftentimes they will parentify a younger sibling because that sibling is not getting what it

needs from his parents so the older child tends to act as the parent, and that is what he

observed between P.H. and J.H. (T. at 15). He also testified that P.H. disclosed witnessing

substance abuse in the removal home, seeing a white powder being sucked up by a

straw, as well as witnessing sexual activity. (T. at 16).

       {¶18} Mr. Kelty testified that the children's foster parents followed his

recommendations, and that the children were very bonded with their foster mother. (T. at

18). He recalled that at the time he stopped counseling with the minor children, he had

observed a significant increase in their ability to bond in a family setting with the foster

family, which he attributed to their long-term stability in their foster home as well as the

parenting education within the foster home. (T. at 20-21).

       {¶19} Mr. Kelty also testified as to a letter he wrote on April 11, 2018, indicating

that, in his professional opinion, having visits take place between the children and their

biological parents after the passing of so much time between contact was not in the best

interest of the minor children's emotional development. (T. at 21). He also verified that he

wrote another letter on December 14, 2018, indicating that a reintroduction of visitation

with biological parents at that point would have been detrimental to the children's

development and would place them at a higher risk for reactive attachment issues making

it more difficult for them to create and maintain healthy relationships, and being

reintroduced with biological parents would most certainly have a negative impact on their

condition. (T. at 24). He testified that his opinion regarding the children having contact
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                        6


with biological parents and the negative impact it would have on the children had not

changed. (T. at 24-25).

       {¶20} Tracy Milner testified that she is a licensed social worker and that she began

working with P.H. and J.H. as their primary counselor in May, 2019, after Daniel Kelty

changed jobs. (T. at 34-36). Ms. Milner stated that she completed new mental health

assessments of the minor children when she began counseling with them and that she

diagnosed J.H. with an unspecified adjustment disorder. (T. at 36). She testified that the

factors that led to this diagnosis included adjusting to a new living arrangement after

disruptive placements and removals, outbursts, display of mixed emotions and difficulty

transitioning. (T. 37-38).

       {¶21} Ms. Milner diagnosed P.H. with post-traumatic stress disorder for under the

age of six, as well as adjustment disorder with mixed emotions and conduct disturbances.

(T. at 36). She explained that the factors that led to P.H.'s diagnosis of post-traumatic

stress disorder included her removal from home, a couple of different placements before

the age of six, and neglect before the age of six. (T. at 37). She further explained that the

factors that led to P.H.'s diagnosis of adjustment disorder included her removals,

disruptive placements, outbursts, display of mixed emotions and difficulty transitioning.

(T. at 37-38). Ms. Milner also testified that P.H. also shows characteristics and traits of

reactive attachment disorder. (T. at 38).

       {¶22} She explained that the stability provided by the children's foster parents

and the extended family of the foster parents was "major" for the children, and that if the

children lost the stability provided by the foster parents they would regress. (T. at 40).

She warned that the children would have more acting out behaviors and would have to
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                         7


relearn how to love and trust again if they lost the stability provided by the foster parents.

(T. at 41). Ms. Milner emphasized that permanency was absolutely important for both

children's long-term progress. Id. She testified that J.H. had been able to assimilate to the

foster family very well because he did not have a recollection of living with his biological

parents and as a result was not subject to the same amount of trauma as P.H. (T. at 42-

43).

       {¶23} Kim Hardin testified that she is a LCDC II drug and alcohol counselor and

caseworker for Integrated Services, and that she was working with Appellant-Mother to

help her obtain housing and to monitor her recovery. (T. at 54-55). Ms. Hardin testified

that while Mother had obtained housing, it had not been inspected nor had Mother moved

in. (T. at 55).

       {¶24} Regina Yost testified that she is a substance use disorder clinical manager

for Perry Behavioral Health and that a clinician at Perry Behavioral Health completed an

assessment of Appellant-Mother in 2016 with a recommendation for outpatient treatment.

(T. at 61-64). She testified that Appellant-Mother received an approved discharge from

counseling on February 7, 2017, but that Mother was re-referred for another assessment

in January, 2018, by Muskingum County Adult Probation as part of a presentence

investigation. (T. at 65). Ms. Yost completed the re-assessment and recommended

residential treatment for substance use disorder followed by intensive outpatient

treatment and standard outpatient aftercare, both group and individual sessions, to

continue mental health treatment, and to maintain abstinence and attend 12-step

meetings. (T. at 67). She stated that Appellant-Mother did not follow the treatment

recommendations because she became incarcerated and was discharged from Perry
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                      8


Behavioral Health on February 28, 2018. (T. at 68). She stated that Appellant-Mother

remained incarcerated for nine (9) months on that occasion. (T. at 70).

       {¶25} Emily Earle testified that she is a senior outpatient clinician at Allwell

Behavioral Health. (T. at 74). Ms. Earle told the court that Appellant-Mother did not

participate in counseling between February 7, 2018, and April 4, 2019. (T. at 74-76).

       {¶26} Kelly Valentine testified that she is an ongoing caseworker with Perry

County Children Services and had been assigned to this family from June, 2019, through

the date of the permanent custody hearing. (T. at 80). Ms. Valentine testified that she had

no contact with Father, and his whereabouts were unknown. (T. at 81). She further

testified that Appellant-Mother had been in drug court with the Perry County Municipal

Court the entire time she had been assigned as the family's caseworker. (T. at 82). Ms.

Valentine testified that Appellant-Mother had been compliant with her case plan from

June, 2019, except that Appellant-Mother would not share if she obtained housing. (T.

84, 89).

       {¶27} Lacy Bateson also works for Perry County Children Services as an ongoing

caseworker and worked with P.H., J.H. and the parents from August 9, 2016, through the

beginning of May, 2019. (T. at 93-94). Ms. Bateson testified that J.H. was initially placed

with foster parents from August 10, 2016, to August 19, 2016, but was then placed with

his paternal grandparents from August 19, 2016, to November 1, 2016. J.H. remained in

his paternal grandparents' temporary custody from November 2, 2016, to June 16, 2017,

after which J.H. was placed with his current foster parents from June 16, 2017, to the date

of the permanent custody hearing, totaling two years, two months and twenty days. (T. at

97-98).
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                      9


      {¶28} Ms. Bateson testified that P.H. was also initially placed with foster parents

from August 10, 2016, to August 19, 2016, but was then placed with her paternal

grandparents from August 19, 2016 to November 1, 2016, where she remained in their

temporary custody from November 2, 2016, to July 20, 2017. P.H. was then placed with

her current foster parents from July 20, 2017, to the date of the permanent custody

hearing, being two years, one month and sixteen days. (T. at 96-97).

      {¶29} Ms. Bateson testified that she developed a case plan with the family on

September 15, 2016. (T. at 98). The initial concerns identified in the case plan were the

parents' drug use, the children's inability to self-protect, and parents' lack of safe and

stable housing. (T. at 99). She stated that Appellant-Mother initially completed her drug

and alcohol assessment on November 8, 2016, and that she was successfully discharged

from counseling by Perry Behavioral Health despite not completing all of the

recommendations. (T. at 99-100). She testified that from March, 2017, through May,

2017, Mother missed several random drug screens and in May, 2017, she tested positive.

(T. at 101). Ms. Bateson re-referred Appellant-Mother to Perry Behavioral Health for an

assessment on June 8, 2017, due to the positive drug screen, but Appellant-Mother failed

to schedule an assessment. (T. at 101-102). She testified that she referred Mother for

another assessment on October 16, 2017, due to another positive drug screen. (T. at

101). She stated that Appellant-Mother did make an appointment for October 27, 2017,

as a result of the second re-referral. Id. Ms. Bateson testified that on December 15, 2017,

Appellant-Mother overdosed on heroin and was again re-referred for a drug and alcohol

assessment. (T. at 102, 112). She testified that the parents were requested to comply

with Integrated Services for housing and mental health counseling, and that they
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                   10


cooperated with Integrated Services from September, 2016, to January 4, 2017. (T. at

103). She testified that after that time, the parents made no progress on the case plan

component requiring them to comply with Integrated Services while she was the ongoing

caseworker, and they never obtained independent housing. (T. at 104). She stated that

the parents did not consistently attend mental health counseling and did not comply with

the ISAM Drug Testing Program. (T. at 104-105). She further testified that Appellant-

Mother had not visited with the minor children from February 13, 2018, through the date

of the permanent custody hearing. (T. at 111). She testified that Mother was incarcerated

from February 13, 2018, until November 2, 2018, and that Appellant-Mother made no

effort to contact her, nor did she respond to caseworker's attempts to engage her from

the date of her release from prison in November, 2018, until she was re-incarcerated on

April 16, 2019. (T. at 113-116).

       {¶30} Lacy Bateson testified that Appellant-Mother was presently staying with her

parents, and that PCCS had concerns about Appellant-Mother's parents' drug use and

indicated that the parents had declined to submit to a drug test. (T. at 105).

       {¶31} The trial court also heard from Melissa Kennedy, a drug court probation

officer for the Perry County Municipal Court, who testified that Appellant-Mother entered

the drug court program May 16, 2019, and was in phase two of the program as of the

date of the hearing on the motion for permanent custody. (T. 131-134). Ms. Kennedy

explained that the drug court program typically lasts one year, and there are four phases

to the program. (T. at 135). She stated that she had no knowledge of Appellant-Mother's

compliance with PCCS prior to May 16, 2019. (T. at 137).
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                                11


       {¶32} Appellant-Mother B.B. testified that at the present time, she was residing

with her parents. (T. at 140). She testified that she would be moving into her own

apartment, but had not yet signed the lease. (T. at 140-141). She further testified that her

drug addiction began with prescribed medications, including Vicodin, Clonopin, Tramadol,

Gabapentin, Zyprexa, and Seroquel, but when her doctor quit writing her prescriptions

due to her positive drug test for marijuana, she began self-medicating. (T. at 142). She

admitted that she had been incarcerated on several occasions during the pendency of

this matter, and that she was imprisoned for a felony conviction for possession of

methamphetamine. (T. at 142-144). She testified that after she was released from prison

she relapsed and was charged with possession of drug paraphernalia. (T. at 145). Mother

testified that she had made progress in the drug court program, but admitted that she was

not ready to fully parent the children but would like to begin visitation with them. (T. at

148). She stated "I want to hopefully someday be full - have a full relationship, like an

actual mother-child relationship with my children. I want that very much so. But right now,

like, I really think, like, all them full-time at first, no, I don't think I'm ready for that. Visits,

yes, I do." (T. at 149).

       {¶33} Lastly, the trial court heard testimony from the Guardian ad Litem Sandra

Brandon, who pointed out on cross-examination of Mother, that it was three (3) years into

this case and Appellant-Mother was still not in a position to have the children with her as

she had no apartment, no job, and she hadn't seen her kids since February, 2018, all of

which mother admitted. (T. at 162). The Guardian ad Litem testified that she believed it

was in the best interest of the minor children for them to be placed in the permanent

custody of Perry County Children Services. (T. at 164).
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                     12


      {¶34} The drug screening records from American Court Services for Appellant-

Mother and Father were stipulated to and entered into evidence as exhibits.

      {¶35} On November 4, 2019, the trial court issued a Final Order granting Perry

County Children Services permanent custody of P.H. and J.H.

      {¶36} It is from this Order Appellant-Mother appeals, raising the following

assignment of error:

                                  ASSIGNMENT OF ERROR

      {¶37} I. THE TRIAL COURT'S FINDING THAT THE BEST INTEREST OF THE

MINOR CHILDREN WOULD BE SERVED BY GRANTING PCCS'S MOTION FOR

PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE

      {¶38} This case comes to us on the expedited calendar and shall be considered

in compliance with App.R. 11.2(C).

                                                I.

      {¶39} In her sole assignment of error, Appellant-Mother contends the trial court

erred in finding it was in the child’s best interest to grant permanent custody to PCCS.

We disagree.

      {¶40} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will not
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                        13


be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

        {¶41} R.C. §2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. §2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

        {¶42} Following the hearing, R.C. §2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (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; (c) the child is orphaned and there are no relatives of the child who are able

to take permanent custody; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

        {¶43} In determining the best interest of the child at a permanent custody hearing,

R.C. §2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

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

other person who may significantly affect the child; (2) the wishes of the child as
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                         14


expressed directly by the child or through the child's guardian ad litem, with due regard

for the maturity of the child; (3) the custodial history of the child; and (4) 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.

       {¶44} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

       {¶45} Here, R.C. §2151.414(B)(1)(d) applies as the children have been in the

temporary custody of the Agency for twelve or more months of the consecutive twenty-

two month period.

       {¶46} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents. Under R.C. §2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. §2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

       {¶47} As set forth in detail in our statement of the facts and case, supra, Appellant-

Mother failed to successfully complete her case plan. Appellant-Mother herself testified

that she is not ready to have the children with her full-time. Appellant-mother had not

visited with the children since February 13, 2018. The trial court also heard evidence that
Perry County, Case Nos. 19 CA 00022 and 19 CA 00023                                     15


the mental health diagnoses for the children are the result of abusive and neglectful acts

by the parents. Further, testimony was presented that the children are bonded with their

foster parents, and that reunification with either parent would be detrimental and harmful

to the children. The Guardian ad Litem also recommended permanent custody both at

trial and in her written report to the trial court.

       {¶48} Based upon the foregoing, we find the trial court's finding that it was in the

best interest of the children to grant permanent custody to PCCS is not against the

manifest weight of the evidence.

       {¶49} Mother’s sole assignment of error is overruled.

       {¶50} The judgment of the Court of Common Pleas, Juvenile Division, Perry

County, Ohio, is affirmed.


By: Wise, P. J.

Delaney, J., and

Baldwin, J., concur.




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