[Cite as In re H.M., 2018-Ohio-989.]




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

 IN THE MATTER OF: H.M., E.M.,                :  C.A. CASE NO. 2017-CA-42
      B.M., Jr., L.M. and W.M.                :
                                              :  T.C. NO. N46373
                                              :
                                              :
                                              :
                                              :  (Civil Appeal from
                                              :  Juvenile Court)
                                              :
                                              :
                                         ...........

                                         OPINION


                            Rendered on the 16th day of March, 2018.

                                         ...........

NATHANIEL LUKEN, Atty. Reg. No. 87864, 61 Greene Street, Xenia, Ohio 45385
    Attorney for Greene County Children Services

BEN SWIFT, Atty. Reg. No. 65745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Mother

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

DONOVAN, J.

        {¶ 1} Appellant R.B. (hereinafter referred to as “Mother”) appeals a decision of the

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

with respect to her five minor children, H.M., E.M., B.M., L.M., and W.M. (hereinafter
                                                                                        -2-


referred to as “the Children”), and awarding permanent custody of all of the Children to

Greene County Children Services (hereinafter “GCCS”). Mother filed a timely notice of

appeal with this Court on July 14, 2017.1

      {¶ 2} The record establishes that H.M. was born in June of 2009. E.M. was born

in November of 2011. B.M. was born in November of 2012. L.M. was born in December

of 2013. W.M. was born in December of 2014. Father and Mother are the biological

parents of all five children. At the time GCCS became involved with the family, Mother

was the legal custodian and residential parent of the children, and they all lived together

with Father at a residence in Fairborn, Ohio.

      {¶ 3} Based upon a report that Father had threatened to harm W.M. and then kill

himself, GCCS filed a complaint on March 18, 2015, alleging that the children were

neglected and dependent. Shortly thereafter on March 24, 2015, GCCS requested and

was granted an ex parte order of emergency custody of all of the children, with the sole

exception of W.M. who had been taken from Mother and hospitalized for failure to thrive.

A shelter care hearing was held on March 25, 2015, and GCCS was awarded interim

custody of H.M., E.M., B.M., and L.M. On May 14, 2015, GCCS filed another complaint

alleging that W.M. was neglected and dependent.         On June 10, 2015, GCCS was

awarded interim custody of W.M. after she was released from the hospital.

      {¶ 4} At a hearing on October 8, 2015, the parties stipulated that the children were

neglected and dependent, and the trial court awarded temporary custody to GCCS in an


1 We note that although Father’s parental rights regarding all of the children were also
terminated along with Mother’s rights, Father did not appeal the trial court's decision.
Therefore, on appeal, we need only address the merits of the trial court’s decision as it
relates to Mother. We further note that on February 22, 2018, Father indicated to this
Court that he did not intend to file a response to Mother’s appellate brief.
                                                                                         -3-


entry issued on October 27, 2015. At an annual hearing held on March 25, 2016, GCCS

was granted its first extension of temporary custody of the children. We note that in the

early pendency of the case, GCCS created a case plan for Mother and Father whereby

they could address the issues leading to the removal of the children from their care. The

initial case plan for Mother included the following: 1) sign all releases of information; 2)

complete psychological and parenting assessments and follow any recommendations; 3)

obtain and maintain secure, safe, and stable housing; 4) complete domestic violence

classes through the Domestic Violence Prevention Center; and 5) attend the children’s

medical and educational appointments.

       {¶ 5} On June 21, 2016, GCCS filed a motion for permanent custody of the

children. On August 1, 2016, the children’s paternal grandparents filed a motion for legal

custody. On September 16, 2016, a review hearing was held, and GCCS was awarded

a second and final extension of temporary custody.

       {¶ 6} On October 16, 2017, and December 27, 2016, hearings were held on

GCCS’s motion for permanent custody as well as the paternal grandparents’ motion for

legal custody. On July 3, 2017, the juvenile court issued a decision granting GCCS’s

motion for permanent custody, thereby terminating the parental rights of Mother and

Father.   The juvenile court also denied the paternal grandparents’ motion for legal

custody of the children.2

       {¶ 7} It is from this decision that Mother now appeals.

       {¶ 8} Mother’s sole assignment is as follows:



2We note that the paternal grandparents did not appeal the trial court’s decision granting
GCCS permanent custody of the children.
                                                                                       -4-


      {¶ 9} “THE TRIAL COURT’S FINDING THAT THE GRANTING OF PERMANENT

CUSTODY OF APPELLANT’S CHILDREN WAS IN THE CHILDREN’S BEST INTEREST

WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”

      {¶ 10} In her sole assignment, Mother contends that the juvenile court erred when

it granted permanent custody of the Children to GCCS. Specifically, Mother argues that

GCCS failed to establish by clear and convincing evidence that it was in the best interest

of the children to terminate Mother and Father’s parental rights and be placed in the

permanent custody of GCCS.

                                The “12 of 22” Determination

      {¶ 11} Initially, Mother argues that the while the children were in the custody of

GCCS for more than twelve months, those twelve months were not within a consecutive

twenty-two month period when GCCS filed its motion for permanent custody.

Essentially, Mother contends the children could not have been in the custody of GCCS

for twelve out of twenty-two consecutive months because a twenty-two month period had

not yet elapsed between the onset of the case and filing of the motion for permanent

custody.

      {¶ 12} The “12 of 22” provisions set forth in R.C. 2151.413(D)(1) and R.C.

2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s parents

against the importance of a speedy resolution of the custody of a child. In re C.W., 104

Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 22.          Through the “12 of 22”

provisions in the permanent-custody statutes, the legislature provides parents with 12

months to work toward reunification before an agency can institute a permanent-custody

action asserting R.C. 2151.414(B)(1)(d) grounds. Id. Consequently, parents must be
                                                                                        -5-

afforded every procedural and substantive protection the law allows. Id. at ¶ 23.

Therefore, in light of the purpose of R.C. Chapter 2151 and a court’s obligation to provide

parents with procedural protections in permanent custody proceedings, an agency must

afford parents the full 12-month period to work toward reunification before moving for

permanent custody on R.C. 2151.414(B)(1)(d) grounds. Id.

      {¶ 13} In light of the Court’s holding in In re C.W., the GCCS argues that it was not

required to wait until twenty-two months had passed before filing its motion for permanent

custody as long as the children had been in its custody for at least twelve consecutive

months when the motion for permanent custody was filed. See In re J.R., 5th Dist. Stark

No. 2016CA00018, 2016-Ohio-2703, ¶ 49. “[A]n agency can file for permanent custody

any time after the child has been in the agency’s continuous custody for at least twelve

months.” In re Vann, 5th Dist. Stark No. 2005CA00127, 2005-Ohio-4398, ¶ 18, citing In

re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 23.

      {¶ 14} In In re T.B., 9th Dist. Summit No. 21124, 2002-Ohio-5036, ¶ 23, a child

was placed in the temporary custody of the agency in March 2000. At a sunset hearing

in April 2001, the court granted a six-month extension of temporary custody. The agency

filed a motion for permanent custody in September 2001. The mother argued on appeal

that R.C. 2151.414(B)(1)(d) requires that the 22-month time period expire before a court

could make a finding that a child has been in the custody of a public agency for 12 of the

last 22 consecutive months. The appellate court rejected this argument, holding that:

      There is nothing in the plain language of the statute that requires a public

      agency to wait until a child has been in its custody for twenty-two months

      before filing a motion for permanent custody. The statute requires only that
                                                                                          -6-


       the child must have been in the custody of a public agency for twelve or

       more months of a consecutive twenty-two month period.              This might

       include a situation where a child had been in temporary custody for six

       months on one occasion, was briefly out of agency custody, and then

       returned to temporary custody for another six months -- all within a

       consecutive twenty-two month period.        It may also include a situation

       where a child has been in the temporary custody of an agency for twelve

       consecutive months. In either event, once a child has been in temporary

       custody for at least twelve months out of twenty-two consecutive months,

       the second prong of the two-part test set forth in R.C. 2151.414(B)(1) is met.

       In this case, T.B. was in custody for over fifteen consecutive months.

       Accordingly, Appellant’s argument is without merit.

Id. at ¶ 23.

       {¶ 15} Recently, however, the Sixth District Court of Appeals held that while “[a]n

agency may file for permanent custody at any time for another other reason set forth in

R.C. 2151.414(B)(1), * * * if the basis for the motion is R.C. 2151.414(B)(1)(d), the statute

clearly requires the agency must have had temporary custody of the child for ‘12 months

or more of a consecutive twenty-two-month period.’ ” In re K.L., 6th Dist. Lucas Nos. L-

17-1201, L-17-1210, 2017-Ohio-9003, ¶ 45. The In re K.L. court further stated:

       The purpose of the “12 of 22 consecutive months” clause is clear when it is

       read in conjunction with R.C. 2151.413(D), which provides that the agency

       who has had temporary custody of a child for 12 months of a 22-month

       consecutive period must file a motion for permanent custody. When such
                                                                                        -7-


      a motion is filed, the basis for awarding permanent custody is R.C.

      2151.414(B)(1)(d). The General Assembly has determined that it is in the

      best interest of the parties that custody issues be resolved within 24 months.

      See R.C. 2151.353(G) (temporary custody orders terminate after one year);

      R.C. 2151.415(D)(4) (temporary custody can be extended for no more than

      two, six-month extensions). If the 22-consecutive months does not mean

      22 months of agency involvement, there was no need to set forth that

      number in the statute. Instead, the statute would have required permanent

      custody to have been sought after 12 months of temporary custody had

      expired, regardless of whether temporary custody was intermittent or

      continuous.

Id. at ¶ 48. We note that while the In re K.L. court found the trial court erred in finding

that R.C. 2151.414(B)(1)(d) could be a basis for awarding permanent custody, other

grounds for the award of permanent custody existed pursuant to R.C. 2151.414(B)(1).

Id. at ¶ 49. Therefore, the trial court was found to not have committed reversible error.

Id.

      {¶ 16} R.C. 2151.414(B)(1)(e) states that, “[f]or the purposes of division (B)(1) of

this section, a child shall be considered to have entered the temporary custody of an

agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of

the Revised Code or the date that is sixty days after the removal of the child from home.”

Here, the children were adjudicated neglected and dependent on October 27, 2015, well

beyond the sixty days they were removed from the home of Mother and Father.

Accordingly, for the purposes of this analysis, the sixty days after removal date applies.
                                                                                           -8-


R.C. 2151.414(B)(1)(e).

       {¶ 17} In the instant case, the record establishes that GCCS was awarded interim

custody of H.M., E.M., B.M., and L.M. on March 25, 2015. Sixty days after that date was

May 24, 2015. On April 20, 2015, W.M. was removed from the parents’ home for failure

to thrive and brought to the hospital. Sixty days after that date was June 19, 2015. On

June 21, 2016, GCCS filed a motion for permanent custody of the children. By that time,

all of the children had been in the custody of GCCS for at least twelve months.

       {¶ 18} Therefore, it is undisputed that at the time that the motion for permanent

custody was filed on June 21, 2016, all of the children had been in the custody of GCCS

for over twelve months. Even when it is read in conjunction with R.C. 2151.413(D), R.C.

2151.414(B)(1)(d) does not require twenty-two consecutive months of agency

involvement to have transpired before GCCS can file its motion for permanent custody,

only twelve months. Here, the children had been in the custody of GCCS for over twelve

consecutive months when GCCS filed its motion for permanent custody. Therefore, we

find that the juvenile court did not err in finding that R.C. 2151.414(B)(1)(d) was satisfied.

                          Best Interests of the Children Determination

       {¶ 19} In this section of her assignment, Mother argues that the juvenile court erred

when it found that awarding permanent custody to GCCS was in the children’s best

interest.

       {¶ 20} R.C. 2151.414(B)(1) establishes a two-part test for courts to apply when

determining a motion for permanent custody to a public services agency. The statute

requires the court to find, by clear and convincing evidence, that: (1) granting permanent

custody of the child to the agency is in the best interest of the child; and (2) either the
                                                                                           -9-


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

not be placed with either parent if any one of the factors in R.C. 2151.414(E) are present;

(b) is abandoned; (c) is orphaned and no relatives are able to take permanent custody of

the child; or (d) has been in the temporary custody of one or more public or private

children services agencies for twelve or more months of a consecutive twenty-two month

period. In re K.M., 8th Dist. Cuyahoga No. 98545, 2012-Ohio-6010, ¶ 8, citing R.C.

2151.414(B)(1).

       {¶ 21} R.C. 2151.414(D) directs the trial court to consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction

and interrelationship of the child with the child’s parents, relatives, foster parents and any

other person who may significantly affect the child; (2) the wishes of the child; (3) 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; (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 to the agency; and (5) whether any of the

factors in R.C. 2151.414(E)(7) through (11) are applicable.

       {¶ 22} At the time of the permanent custody hearing, the foster mother testified

that she, her husband, and their granddaughter had a developed a significant bond with

the children. The foster mother testified that the children have also exhibited that they

have a very close bond with one another. Significantly, the evidence also established

that the children are adoptable, and that at the time of the hearing, the foster family

expressed their desire to adopt all of the children. The foster mother also testified that
                                                                                         -10-


when she initially took the children into her home, the children all exhibited mental or

physical issues, to wit: 1) H.M. was diagnosed with adjustment disorder and anxiety; 2)

E.M. displayed developmental delays in his speech and fine motor skills and is on an

individual education plan (IEP) to address his issues; 3) B.M. has anger management

issues and displayed violent tendencies; 4) L.M. had problems sleeping and an iron

deficiency; and 5) W.M. had cardiac issues and had to visit a geneticist. The foster

mother testified that since the children had come to live with her and her family, many of

their issues had resolved or improved significantly.

      {¶ 23} Tasha Nguyen, Mother’s current GCCS caseworker, testified that

throughout the duration of the case, Mother has always been on supervised visitation,

such that an employee always has to be in the room when she is interacting with her

children. Nguyen also testified that Mother’s weekly visits with the children should have

increased, both in the amount of visits and the duration of said visits. However, Nguyen

testified that when she asked Mother if she would like to increase her visits, Mother

declined. In fact, Mother has only exercised one supervised visitation per week for the

duration of the case.

      {¶ 24} Additionally, at the visitations with the children, all of the GCCS caseworkers

who testified agreed that Mother was passive and did not interact with the children in any

significant way. The foster mother testified that the younger children, B.M., L.M. and

W.M., exhibited reluctance to enter the visitation center when they had meetings with

Mother.   Although she was provided the foster mother’s contact information (phone

number, etc.), Mother rarely called the children. The foster mother also testified that

Mother has not attended any of the children’s medical or educational appointments since
                                                                                     -11-


2015.

        {¶ 25} Furthermore, the record establishes that Mother has ongoing mental health

problems that she has failed to properly address. Dr. Richard Bromberg testified that he

conducted two psychological evaluations and parenting assessments on Mother in May

of 2015 and June of 2016, respectively. In the first evaluation, Dr. Bromberg observed

Mother interact with the children.   Dr. Bromberg observed that Mother was passive

towards the children and did not set any limits with respect to their behavior.      Dr.

Bromberg also diagnosed Mother with personality disorder with features from several

personality disorder types, including schizoid avoidant, obsessive compulsive dependent,

passive aggressive, and anti-social behavior. Dr. Bromberg also administered a global

assessment of functioning to Mother. Dr. Bromberg testified that Mother received a

score of forty-eight on the assessment, where any score below fifty represents the

existence of serious psychological impairment. In the evaluation, Dr. Bromberg gave

Mother the following recommendations: 1) supervised visitation with the children; 2)

psychotropic medication; 3) weekly dialectical behavior therapy for a minimum of two

years in both individual and group settings; 4) parenting skills training; 5) anger

management classes; and 6) domestic violence education programming.

        {¶ 26} Dr. Bromberg testified that the purpose of the second evaluation

approximately one year later was to gauge Mother’s progress. After observing Mother

with the children again, Dr. Bromberg reported that Mother still exhibited the same

passive behavior and failed to set any limits regarding the children’s behavior.     Dr.

Bromberg described the scene as chaotic. Furthermore, Dr. Bromberg testified that the

second evaluation that he administered was hampered by Mother’s tendency to respond
                                                                                        -12-


to questions in a defensive manner, as well as under report and minimize her negative

behaviors. Mother also reported that while she had received some general counseling

and attended some domestic violence classes, she had not received any specialized

treatment. In the second evaluation, Dr. Bromberg stated that he would continue to

make the same recommendations included in the first evaluation, but it would be another

eighteen to twenty-four months before her progress could be evaluated again. At the

time of the permanent custody hearing, Dr. Bromberg testified that Mother would be

unable to effectively parent the children and that it would be a minimum of two years, if

not five to ten years, before the treatment would be successful. Finally, Dr. Bromberg

testified that he was concerned by Mother’s failure to acknowledge the harm caused to

the children by Father’s violent behavior.

       {¶ 27} The record further establishes that Mother has failed to provide adequate

housing for the children. Mother specifically testified at the permanent custody hearing

that she did not have her own residence where the children could live with her. Two of

Mother’s GCCS caseworkers, Amanda Ray and Allison Hull, both testified that Mother

refused to provide GCCS with the address of where she was currently living. GCCS

caseworker Olivia Dean testified that Mother provided her with an address where she was

living in Kentucky. However, when Dean traveled to the address provided, she could not

locate Mother nor confirm that she lived there.

       {¶ 28} With respect to the wishes of the children, H.M., the oldest child, expressed

through her Court Appointed Special Advocate / Guardian ad Litem (GAL) that she

wanted to remain with her foster family and that the best place for all of the children is

with the foster family. Finally, the GAL indicated that the children's best interests would
                                                                                           -13-


be served by granting permanent custody to GCCS. Mother expresses the desire to

retain custody of the children, but she failed to comply with the terms of her case plan,

which was designed to aid her in rectifying the problems that resulted in GCCS's

intervention. Specifically, the record establishes that Mother failed to maintain stable

housing, and she has significant, ongoing psychological problems that she failed to

properly address by the time of the permanent custody hearing.

       {¶ 29} A juvenile court's decision on termination “will not be overturned as against

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 for a termination of parental rights have been established.” (Citations omitted).

In re A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15. Furthermore, “issues

relating to the credibility of witnesses and the weight to be given the evidence are primarily

for the trier of fact.” In re A.J.S., 2d Dist. Miami No. 2007 CA 2, 2007-Ohio-3433, ¶ 22.

The “rationale of giving deference to the findings of the trial court rests with the knowledge

that the trial judge is best able to view the witnesses and observe their demeanor,

gestures and voice inflections, and use these observations in weighing the credibility of

the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461

N.E.2d 1273 (1984); In re J.Y., 2d Dist. Miami No. 07-CA-35, 2008-Ohio-3485, ¶ 33.

       {¶ 30} Our review of the record, transcript, and exhibits establishes that there is

clear and convincing evidence which supports the juvenile court’s decision finding that

the statutory elements for termination under R.C. 2151.414(B) have been satisfied.

Thus, the juvenile court did not err when it awarded permanent custody of the children to

GCCS.
                                                                                   -14-


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

       {¶ 32} Mother’s sole assignment of error having been overruled, the judgment of

the juvenile court is affirmed.

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


WELBAUM, P.J. and FROELICH, J., concur.


Copies mailed to:

Nathaniel Luken
Christopher Green
Ben Swift
April Moore
Mari McPherson
Hon. Adolfo A. Tornichio
