[Cite as In re S.L., 2018-Ohio-900.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SHELBY COUNTY


IN RE:
                                                            CASE NO. 17-17-17
       S.L.,

ADJUDGED NEGLECTED
AND DEPENDENT CHILD.                                        OPINION

[DUSTANY FOREMAN - APPELLANT]


IN RE:
                                                            CASE NO. 17-17-18
       Su.L.,

ADJUDGED NEGLECTED
AND DEPENDENT CHILD.                                        OPINION

[DUSTANY FOREMAN - APPELLANT]


IN RE:
                                                            CASE NO. 17-17-19
       Sm.L.,

ADJUDGED NEGLECTED
AND DEPENDENT CHILD.                                        OPINION

[DUSTANY FOREMAN - APPELLANT]


             Appeals from Shelby County Common Pleas Court
                            Juvenile Division
Trial Court Nos. 2016-NEG-0044, 2016-NEG-0045 and 2016-NEG-0046

                                       Judgments Affirmed

                             Date of Decision: March 12, 2018
Case Nos. 17-17-17, 17-17-18 and 17-17-19




APPEARANCES:

      Jeremy M. Tomb for Appellant

      Anne K. Bauer for Appellee



WILLAMOWSKI, P.J.

      {¶1} Appellant Dustany Foreman (“Foreman”) brings this appeal from the

judgments of the Court of Common Pleas of Shelby County, Juvenile Division,

terminating her parental rights and granting permanent custody of the children to

the Shelby County Department of Job and Family Services, Children Services

Division (“the Agency”). Foreman claims that the judgments are not supported by

the evidence. For the reasons set forth below, the judgments are affirmed.

      {¶2} In January of 2005, S.L (“Child 1”) was born to Foreman and Jerrid

Lhamon (“Lhamon”). Su.L (“Child 2”) was born to the couple in August of 2007.

Sm.L (“Child 3”) was then born in July of 2011. In September of 2012, the Children

Services Department of Logan County became involved with the family when

allegations of neglect surfaced. The children were removed from Foreman’s home

in October of 2012, and placed in the care of Foreman’s mother (“Karean”). The

children remained in Karean’s care until April of 2013, when they were placed into




                                       -2-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


a foster home.1 In May of 2013, the children were placed in a kinship placement.

This placement lasted until November 22, 2013, when the children were once again

placed in foster care. On June 6, 2014, custody was granted to Lhamon. That case

was then closed in October 2014.                  On November 24, 2013, Karean filed an

application for emergency custody of the children which was granted. The children

then remained in the custody of Karean until the current case. Tr. 85-88.

        {¶3} On August 8, 2016, the Agency received a report that the children were

being neglected by Karean. 1Doc. 2, 2Doc 2, and 3Doc 2.2 While attempting to

work with Karean, she made it clear that she would not be cooperating with the

Agency. Id. On November 1, 2016, the Agency filed a complaint alleging that the

children were neglected and dependent, but did not request the removal of the

children from the home. 1Doc. 1, 2Doc. 1, and 3Doc. 1. An initial hearing was

held on November 17, 2016. 1Doc. 42, 2Doc. 39, and 3Doc. 40. Foreman did not

attend that hearing. Id. At that time, Karean indicated that she was not willing to

cooperate with the Agency or to follow the court orders in order to protect the

children. Id. The trial court, as a result of Karean’s statements, ordered the children

to be placed in the temporary custody of the Agency. Id. The Agency then filed an

initial case plan for the children. 1Doc. 46, 2Doc. 43, and 3Doc. 44. The case plan

indicated that Child 1 was placed in a group home due to her unruly behavior, poor


1
  The details of the placement of this case were not included in the record in this case as that case was in
Logan County and the current case is in Shelby County.
2
  Child 1’s docket will be identified as 1Doc. Child 2’s docket will be identified as 2Doc. Child 3’s docket
will be identified as 3Doc.
                                                    -3-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


grades, and the fact that she was on probation. Id. Child 2 and Child 3 were placed

in a foster home. Id.

       {¶4} On December 22, 2016, an adjudicatory hearing was held. 1Doc. 64,

2Doc. 61, and 3Doc 62. Foreman was present for the hearing. Id. Foreman

stipulated to a finding of neglect and dependency of the children. Id. The trial court

then found that the children were neglected and dependent and ordered that they

remain in the temporary custody of the Agency. Id. Following the adjudicatory

hearing, Heather Fogt (“Fogt”), the guardian ad litem, gave her card to Foreman and

asked her to contact her to set up a home visit. 1Doc. 66, 2Doc. 63, and 3Doc. 64.

Fogt wrote a report for the dispositional hearing that indicated that Foreman had not

contacted her as of January 19, 2017. Id. Fogt recommended that the children

remain in the temporary custody of the Agency in her initial report. Id.

       {¶5} The dispositional hearing was held on January 27, 2017. 1Doc. 69,

2Doc. 66, and 3Doc. 67. Foreman attended the meeting as did Karean. Id. The

Agency requested that Karean be removed from the case plan due to her refusal to

cooperate and the effect her visits were having on the children. Id. The trial court

then ordered Karean to submit to a drug screen before considering returning the

children to her. Id. The screen was positive for methamphetamines, opiates, PCP,

and oxycodone. Id. As a result, Karean was removed from the case plan. Id. Due

to her refusal to provide the court with an address despite claiming she had a

residence, the trial court also refused to allow Foreman to participate in the case

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


plan until an address was provided. Id. The temporary custody of the Agency was

continued. Id.

       {¶6} On February 7, 2017, Child 2 and Child 3 were placed in a second foster

home. 1Doc. 73, 2Doc 70, and 3Doc.71. Child 3 had engaged in behavior which

required police intervention and the original foster parents could no longer provide

the necessary supervision for the children. Id. On February 20, 2017, a new case

plan was filed. Id. This plan did not include any services for Foreman. Id.

       {¶7} On February 14, 2017, the Agency filed a motion for permanent custody

of the children. 1Doc. 79, 2Doc. 75, and 3Doc. 76. The motion indicated that

Lhamon had informed the Agency on December 19, 2016 that he did not wish to

reunify with his children as he did not feel it would be in their best interest. Id.

The motion also indicated that Foreman had not provided an address to the court

and stated that “she had no objection to her non-inclusion in the case plan.” Id.

Since there were no adults in the case plan, the Agency indicated that the children

could not be placed in the legal custody of either parent or any other custodian

within a reasonable amount of time. Id. A new case plan with the permanency goal

of adoption for the children was filed on February 22, 2017. 1Doc. 89, 2Doc. 85,

and 3Doc. 86.

       {¶8} On March 30, 2017, a review hearing was held and Foreman attended.

1Doc. 96, 2Doc.92, and 3Doc. 93. The trial court noted that Foreman had changed

her mind, indicated that she would cooperate with the case plan, and provided an

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


address. Id. The trial court then ordered that Foreman be added to the case plan as

a participant. Id. The Agency then filed a new case plan on April 3, 2017, with the

permanency goal of reunification with Foreman. 1Doc. 95, 2Doc. 91, and 3Doc.

92. The case plan required Foreman to 1) seek a substance abuse assessment within

seven days; 2) seek a mental health assessment within seven days; 3) attend at least

three Narcotics Anonymous meetings per week and provide proof of her attendance;

4) cooperate with all requested drug screens; 5) seek and obtain employment; 6)

seek and maintain safe and appropriate housing; 7) notify the Agency of the identity

of any persons who reside with her and get approval from the Agency; 8) sign

releases   of   requested   information;      9)   comply   with   all   professional

recommendations; and 10) attend all team meetings unless otherwise excused. Id.

No visitation with the children was scheduled for Foreman in the case plan at that

time. Id. Soon afterwards, the case plan was again amended to reflect that Child 1

had been placed with a foster family after completing the program at the group

home. 1Doc. 97, 2Doc. 93, and 3Doc. 94.

       {¶9} On April 18, 2017, a case plan review was completed. 1Doc. 98, 2Doc.

94, and 3Doc. 95. The review indicated that Foreman had made insufficient

progress on the case plan goals. Id. at 3. Foreman had not started any counseling.

Id. Although Foreman had two negative drug screens, they were at appointments.

Id. The only truly random screen was positive for cocaine, heroin, and morphine.

Id. At the time of the review, Foreman had no job and was living with her boyfriend

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


and his mother. Id. Foreman had not attended any team meetings and had not

appeared for scheduled appointments for the professional assessments. Id. The only

task Foreman had completed was that she had signed the requested release forms.

Id. The summary indicated that four appointments had been scheduled for Foreman

to complete her background check without success. Id. at 5. The caseworker noted

that Foreman appeared to lack motivation to complete the case plan. Id. The review

of the plan was heard by the trial court and the continued plan was approved on May

18, 2017. 1Doc. 101, 2Doc. 96, and 3Doc. 97. A hearing date of July 21, 2017,

was set for the motion for permanent custody. Id.

       {¶10} On July 14, 2017, Fogt filed a written report. 1Doc. 116, 2Doc. 112,

and 3Doc. 113. She indicated that since the March 30, 2017, hearing, she had

contact with Foreman through emails, a phone call and one in person contact. Id. at

2. On April 5, 2017, Fogt received an email indicating that Foreman had not

contacted her because she had been ill. Id. Fogt told her she would call to set up a

home visit, but when she called, Foreman did not respond. Id. On June 20, 2017,

Foreman met with Fogt to bring a stuffed animal that Child 1 had left at Karean’s

and Child 1 wished to have. Id. At that meeting Foreman asked for visitation with

the children, but was told that it would not be recommended until she had begun

working the case plan. Id. On July 11, 2017, Foreman indicated to Fogt that she

wished to schedule a home visit and wanted to get her children returned to her. Id.

Fogt indicated in her report that “[i]nstead of working on the case plan that the court

                                         -7-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


ordered her to follow [Foreman] has disappeared for months at a time only to

resurface at court hearings.” Id. at 4.    Based upon her contact with the parties,

including the children, and the service providers, Fogt recommended that permanent

custody by granted to the Agency. Id.

       {¶11} On July 21, 2017, the permanent custody hearing began. 1Doc. 123,

2Doc. 118, and 3Doc. 119. However, due to a surgery, Foreman was unable to

attend. Id. Counsel for Foreman requested a continuance and the trial court granted

it. Id. The trial court then rescheduled the hearing for August 29, 2017. On the

second date, the hearing was held. 1Doc. 135, 2Doc. 130, and 3Doc. 131. At the

hearing the following testimony was provided.

       {¶12} Ginger Huecker (“Huecker”) testified that she was the elementary

principal at Jackson Center Schools. Tr. 7. In the 2016-2017 school year, Child 2

and Child 3 attended her school. Tr. 9. Huecker kept an eye on the children because

they were frequently tardy or absent, arrived exhausted, did not complete

homework, wore clothing that did not fit, were dirty, and arrived having eaten

nothing with no idea whether they would be eating in the evening. Tr. 10-11.

Huecker testified that she had no interactions with Foreman at all. Tr. 12. After the

children were removed from Karean’s home, they were different children. Tr. 13.

They arrived at school on time, were clean, well-rested, and fed. Tr. 13. The girls

were much happier and their academics improved dramatically very quickly. Tr.

14. Huecker also testified that although Child 1 was not enrolled in the elementary,

                                          -8-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


she knew of her. Tr. 15. Child 1, while living with Karean, had issues with authority

and wore clothing that was too revealing and against the school dress code. Tr. 15.

       {¶13} McKenzie Lotz (“Lotz”) testified that she was a probation officer for

the Shelby County Juvenile Court. Tr. 18. Lotz began working with Child 1 after

Child 1 was placed on probation for assaulting another juvenile. Tr. 19. Child 1

was already in the custody of the Agency by the time Lotz met Child 1, so her goal

was to help Child 1 stay out of trouble. Tr. 20. Lotz described Child 1 as generally

pleasant, but defensive. Tr. 20. While on probation, Child 1 showed positive

growth as her appearance improved, her grades improved, and her behavior

improved. Tr. 21-23.

       {¶14} Jodi Knouff (“Knouff”) was the counselor for the children. Tr. 26.

Knouff testified that Child 1 had behavioral issues, specifically inappropriate

sexualized behaviors, acting out, defiance of authority, and poor school

performance. Tr.28. This included reports by Child 1 of multiple sexual encounters

with adult men while she was 11 years of age. Tr. 37-38. Child 1 also exhibited

cutting behavior to cope with the stress in her life. Tr. 39. Child 1 changed

dramatically in the care of the Agency. Tr. 30. Child 1 no longer viewed herself as

a sexual object with low self-esteem. Tr. 30. Knouff testified that Child 1 appeared

to have hope for the future. Tr. 30. Knouff also testified that Child 2 and Child 3

have made progress in their placements. Tr. 32. Knouff’s recommendation was



                                         -9-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


that permanent custody should be granted due to Foreman’s lack of participation in

the case plan. Tr. 34-36.

       {¶15} Amy Simindinger (“Simindinger”) was the liaison between the trial

court and the school. Tr. 43. She was assigned to work with Child 1 once she

entered the court system for her behavior. Tr. 44. Child 1 had issues with not

attending school, which caused her to have poor grades. Tr. 45. Child 1 had also

been suspended for school for bring cigarettes to school and was also disrespectful

to the teachers. Tr. 45. Simindinger also testified that there were issues with Child

1’s hygiene and mental attitude. Tr. 46. Her clothes were not clean or appropriate

for school. Tr. 46. Her clothing was short, tight, and not typical of what a child her

age would be wearing. Tr. 46. Child 1’s attitude was defensive and defiant. Tr. 46.

After Child 1 was placed in the group home, her behavior and attitude greatly

improved. Tr. 47-48. Simindinger also testified that she had attended the majority

of the case meetings for Child 1, but Foreman was not present. Tr. 49.

       {¶16} Chuck Wirick (“Wirick”) testified that he was the interim chief of

police for the Jackson Center Police Department. Tr. 51. During 2016, Wirick

responded to approximately a dozen calls involving Child 1. Tr. 51. The reason for

the calls ranged from disorderly conduct, unruliness, up to reports of Child 1 being

involved in sexual conduct with adults. Tr. 52. Many of the calls were placed by

Karean who indicated she could not control Child 1. Tr. 52. When he would go to

the home, he noted there was minimal furniture and the children were not present.

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


Tr. 52. After Child 1 was removed by the Agency, he had no additional contact

with child 1. Tr. 52.

       {¶17} Amy Swaney (“Swaney”) testified that she was responsible for

supervising the visits the children attended. Tr. 59. Swaney indicated that during

the visits with Karean, she frequently had to warn Karean not to whisper false

promises to the children. Tr. 61. The visits with Karean were terminated once she

was removed from the case plan. Tr. 62. Swaney attended the case meetings, but

did not see Foreman at any of them. Tr. 62. Swaney also supervised the one visit

that Foreman had with the children. Tr. 64. The visit confused the children and

later they became angry when the promises Foreman made to them were not

fulfilled. Tr. 64. Swaney indicated that the visit amongst the siblings started out

rough, but became positive over time. Tr. 64-65.

       {¶18} Robin Woods (“Woods”) testified that she was the current foster

mother for Child 2 and Child 3. Tr. 75. When they arrived in February of 2017,

Child 3 was very combative and threw temper tantrums that lasted for two to three

hours. Tr. 75. During these episodes, Child 3 would hit, kick, and scream. Tr. 75.

These tantrums occurred several times a week. Tr. 75. Since then, Child 3 has

learned other coping methods. Tr. 76. Child 3 now responds to time outs and is

generally cooperative. Tr. 76. Child 3 had just begun kindergarten and was going

to be tested for ADHD in September. Tr. 76. Child 2 was quiet and reserved at

first, but her behavior became more argumentative. Tr. 76. Over time, this has

                                       -11-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


improved and Child 2 has become a good student who loves school and is happy.

Tr. 77. After the visit with Foreman, the children were combative and told Woods

that they were not staying there, that they were going home. Tr. 78. The children

did not want to listen for a while after that visit. Tr. 78.

       {¶19} Alyssa Barlage (“Barlage”) testified that she was assigned as the on-

going caseworker for the children in November of 2016. Tr. 85. Barlage testified

to the history of the family with various courts and children’s’ services departments.

Tr. 85-88. According to Barlage, the children were originally removed from

Foreman’s care in 2012 due to her drug use. Tr. 86. The children were not supposed

to have contact with Foreman. Tr. 89. When this case was opened on August 16,

2016, Foreman had contact with the Agency, but had no more contact until

December 22, 2016, at the adjudicatory hearing. Tr. 89. The children were removed

from Karean’s care because she refused to keep Foreman away from them despite

the court order to do so and because she saw no issues with how the children were

living. Tr. 89-90. Barlage testified that Lhamon had initially indicated that he

wished to surrender his rights, but did not come into the office to do so. Tr. 96.

Although Foreman knew of the case in August, she chose not to participate until

December of 2016. Tr. 97. Barlage testified that of the case plan requirements there

was little to no compliance. Tr. 99. Ten team meetings were held and Foreman

attended none of them despite the order to do so. Tr. 99. Foreman repeatedly told

Barlage that she was working on the case plan, but never provided any evidence of

                                          -12-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


doing so. Foreman told Barlage that she was applying for jobs, but the list was

always the same and she had not found employment. Tr. 101. She claimed she was

looking for housing, but was still living with her fiancé and his mother. Tr. 102.

Her fiancé had not been cooperative in allowing a background check. Tr. 104.

Foreman had signed the releases, but had not completed any assessments or

counseling. Tr. 105. She repeatedly told Barlage that the appointment was in

September but provided no specifics. Tr. 105. No parent training had been

completed. Tr. 106. A May 4, 2017, drug screen came back positive for cocaine.

Tr. 107. Foreman had a negative drug screen on July 28, 2017, but had then refused

an August 10, 2017 request for a random test. Tr. 108. Barlage testified that as of

the time of the hearing, Foreman had taken no proactive steps to complete the case

plan and had made no progress. Tr. 109.

       {¶20} Barlage also testified as to how the children were progressing. She

testified that she had seen significant changes in all of the children, but specifically

in Child 1. Tr. 110. She indicated that Child 1 had not had a cutting incident since

May of 2017. Tr. 111. Child 1 told Barlage that she did not wish to live with

Foreman, but wanted to be adopted. Tr. 111. All of the children indicated to Barlage

that they were now happy. Tr. 113.

       {¶21} Fogt testified that she was appointed as the guardian ad litem on

November 17, 2016. Tr. 130. Fogt has observed the children together and indicated

they have a typical sibling relationship. Tr. 131. Child 1 has started putting forth

                                         -13-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


an effort to set a good example for Child 2 and Child 3. Tr. 132. Since the children

have been placed in the temporary custody of the Agency, their behavior has

improved and they are starting to act appropriately for their ages. Tr. 133. Fogt

testified that she has met with Foreman two times and received five emails since she

was appointed. Tr. 137. From what Fogt has seen, Foreman has not completed

anything on the case plan, but she does not have access to all of the information

because Foreman did not sign the releases. Tr. 138-39. Fogt testified that she would

be concerned with returning the children to Foreman because they had not lived

with Foreman in over five years, Foreman had not utilized any of the services

offered to her, Foreman lacks housing and employment, and Foreman has ongoing

issues with drugs. Tr. 139-42. After consideration of all of the information known

to her, Fogt recommended that the Agency’s motion for permanent custody be

granted so that the children could have permanency. Tr. 134-36.

       {¶22} Foreman testified on her own behalf. She testified that she had not

attended the counseling because she could not afford it. Tr. 145. She indicated that

she had an appointment on September 11, 2017, but did not know the name of the

psychiatrist. Tr. 145, 150. Foreman also testified that she had applied online for 15

jobs since April, but brought nothing to prove that she was doing so. Tr. 146, 151.

Foreman admitted that she had not been to the jobs center. Tr. 151. Foreman

testified that she was unable to attend the monthly meetings because they were

scheduled in the mornings, but she did not have transportation until in the afternoon.

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


Tr. 147. On cross-examination, Foreman admitted that she had not told anyone at

the Agency that she needed the team meetings to be later in the day rather than in

the morning. Tr. 151. As for her medical condition, Foreman testified that she was

in and out of the hospital with a cyst on her ovaries. Tr. 148. She was admitted to

the hospital on July 13, 2017, and underwent surgery the next day to have the ovary

removed. Tr. 148. She was released from the hospital on July 15, 2017. Tr. 148.

Foreman testified that she was unable to supply the Agency with medical records

because she lacked the funds to pay for copies. Tr. 149. In regards to her drug

addiction, Foreman admitted that she used cocaine in May, but claimed it was a bad

choice and that she would not use drugs if she was around her children. Tr. 153.

However, she also stated that she had not sought any drug counseling since 2012

and had not been to NA in “quite a few months”. Tr. 154-55, 161. Foreman

admitted that when things got difficult, she turned to drugs. Tr. 162. Foreman also

admitted that she had not completed anything on the case plan. Tr. 157.

      {¶23} The trial court filed its judgments on September 25, 2017. 1Doc. 135,

2Doc. 130, and 3Doc. 131. The trial court granted the Agency’s motion for

permanent custody and terminated the parental rights of Lhamon and Foreman. Id.

On September 29, 2017, Foreman filed her notices of appeal. 1Doc. 138, 2Doc.

133, and 3Doc. 134. Foreman raised the following assignment of error on appeal.

      The trial court erred in granting permanent custody to [the
      Agency] because [the Agency] did not show by clear and
      convincing evidence that the children could not be placed with
      [Foreman] within a reasonable time.
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Case Nos. 17-17-17, 17-17-18 and 17-17-19


       {¶24} The sole assignment of error argues that the Agency did not prove by

clear and convincing evidence that the children could not be returned to Foreman

within a reasonable time. The right to parent one's own child is a basic and essential

civil right. In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990). “Parents have

a ‘fundamental liberty interest’ in the care, custody, and management of their

children.” In re Leveck, 3d Dist. No. 5–02–52, 5–02–53, 5–02–54, 2003–Ohio–

1269, ¶ 6.      These rights may be terminated, however, under appropriate

circumstances and when all due process safeguards have been followed. Id. When

considering a motion to terminate parental rights, the trial court must comply with

the statutory requirements set forth in R.C. 2151.414. These requirements include,

in pertinent part, as follows.

       (B)(1) Except as provided in division (B)(2) of this section, the
       court may grant permanent custody of a child to a movant if the
       court determines at the hearing held pursuant to division (A) of
       this section, 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 and that any
       of the following apply:

       (a) The child is not abandoned or orphaned, has not 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, or has not
       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 if, as
       described in division (D)(1) of section 2151.413 of the Revised
       Code, the child was previously in the temporary custody of an
       equivalent agency in another state, 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.
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Case Nos. 17-17-17, 17-17-18 and 17-17-19



       ***

        (2) With respect to a motion made pursuant to [R.C.
       2151.413(D)(1)], the court shall grant permanent custody of the
       child to the movant if the court determines in accordance with
       division (E) of this section that the child cannot be placed with one
       of the child’s parents within a reasonable time or should not be
       placed with either parent and determines in accordance with
       division (D) of this section that permanent custody is in the child’s
       best interest.

       (C) In making the determination required by this section * * *, a
       court shall not consider the effect the granting of permanent
       custody to the agency would have upon any parent of the child. A
       written report of the guardian ad litem of the child shall be
       submitted to the court prior to or at the time of the hearing held
       pursuant to division (A) of this section * * * but shall not be
       submitted under oath.

R.C. 2151.414.     A court’s decision to terminate parental rights will not be

overturned as against the manifest weight of the evidence if the record contains

competent, credible evidence by which a court can determine by clear and

convincing evidence that the essential statutory elements for a termination of

parental rights have been established. See In re B.G.W., 10th Dist. Franklin No.

08AP-181, 2008-Ohio-3693 and In re Nevaeh J., 6th Dist. Lucas No. L-06-1093,

2006-Ohio-6628, ¶ 17 (citing In re Forrest S., 102 Ohio App.3d 338, 657 N.E.2d

307 (6th Dist. 1995)).

       {¶25} The determination whether to grant a motion for permanent custody

requires a two-step approach. In re G.B., 10th Dist. Franklin No. 04AP–1024,

2005–Ohio–3141, ¶ 13. The first step is to determine whether any of the factors set

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Case Nos. 17-17-17, 17-17-18 and 17-17-19


forth in R.C. 2151.414(B)(1) apply. Id. If one of those circumstances applies, then

the trial court must consider whether granting the motion is in the best interest of

the child by considering the factors set forth in R.C. 2151.414(D). Id.

        {¶26} A review of the record in this case shows that the children had not been

in the custody of the Agency for 12 out of the prior 22 consecutive months at the

time the motion for permanent custody was filed as was admitted by Barlage during

her testimony. Tr. 115. Thus, the trial court had to determine whether the children

could be placed with Foreman within a reasonable period of time. The trial court

determined that the children could not be placed with Foreman within a reasonable

time based upon making a determination that R.C. 2151.414(E)(1) applied in this

case.

         (E) In determining at a hearing held pursuant to division (A) of
        this section * * * whether a child cannot be placed with either
        parent within a reasonable period of time or should not be placed
        with the parents, the court shall consider all relevant evidence. If
        the court determines by clear and convincing evidence, at a
        hearing held pursuant to division (A) of this section * * * that one
        or more of the following exist as to each of the child’s parents, the
        court shall enter a finding that the child cannot be placed with
        either parent within a reasonable time or should not be placed
        with either parent:

        (1) Following the placement of the child outside the child’s home
        and notwithstanding reasonable case planning and diligent efforts
        by the agency to assist the parents to remedy the problems that
        initially caused the child to be placed outside the home, the parent
        has failed continuously and repeatedly to substantially remedy the
        conditions causing the child to be placed outside the child’s home.
        In determining whether the parents have substantially remedied
        those conditions, the court shall consider parental utilization of
        medical, psychiatric, psychological, and other social and
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Case Nos. 17-17-17, 17-17-18 and 17-17-19


       rehabilitative services and material resources that were made
       available to the parents for the purpose of changing parental
       conduct to allow them to resume and maintain parental duties.

R.C. 2151.414.

       {¶27} The evidence in this case was that the children were originally

removed from Foreman’s home in August of 2012. Since that time, Foreman had

not taken any steps to remedy the reasons for the removal. When notified of the

August 2016 report, Foreman chose not to become involved instead choosing to let

her mother handle the issues. The record shows that Foreman took no steps to even

be listed on the case plan until after the Agency had filed the motion for permanent

custody. When granted the opportunity to work the case plan and be reunified with

her children, Foreman took no proactive steps and admitted that she had not

completed any aspect of the case plan. In addition, she had a positive drug test for

cocaine in May 2017, and refused to take the requested drug screen in August 2017.

Based upon this evidence, the trial court determined that Foreman had “wholly

failed to comply with or complete, in any meaningful manner, the requirements of

the case plan or substantially remedy the conditions causing each of the children to

be place [sic] outside the child’s home within the applicable time frame.” 1Doc.

135 at 12, 2Doc. 130 at 12, and 3Doc. 131 at 12. The same finding was made as to

Lhamon. Given the evidence before it, this finding of the trial court was supported

by clear and convincing evidence. Having made those findings pursuant to R.C.



                                       -19-
Case Nos. 17-17-17, 17-17-18 and 17-17-19


2151.414(E)(1), the trial court was required to find that the children could not be

placed with Foreman within a reasonable time.

       {¶28} The trial court then went on to consider the best interests of the

children pursuant to R.C. 2151.414(D). 1Doc. 135, 2Doc. 130, and 3Doc. 131. The

trial court indicated that it considered not only the evidence presented at the hearing,

but the wishes of the children as expressed during in camera interviews. Child 1

indicated that she wished to remain in the custody of the Agency rather than go back

to Foreman. Id. Based upon all of the evidence, the trial court determined that it

would be in the best interests of the children to grant the motion for permanent

custody. This conclusion is supported by competent credible evidence from which

the trial court could determine by clear and convincing evidence that the essential

statutory elements for a termination of parental rights have been met. Thus, the

assignment of error is overruled.

       {¶29} Having found no error prejudicial to Appellant in the particulars

assigned and argued, the judgments of the Court of Common Pleas of Shelby

County, Juvenile Division, are affirmed.

                                                                 Judgments Affirmed

SHAW and PRESTON, J.J., concur.

/hls




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