[Cite as In re J.H., 2020-Ohio-2658.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


In re J.H.                                        Court of Appeals No. L-19-1295

                                                  Trial Court No. JC 19275139



                                                  DECISION AND JUDGMENT

                                                  Decided: April 24, 2020

                                          *****

        Christopher S. Clark, for appellant.

        Janna E. Waltz and Jill E. Wolff, for appellee.

                                          *****

        ZMUDA, P.J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, Juvenile Division, awarding permanent custody of the

minor child, J.H. to Lucas County Children Services (“LCCC”), and terminating the

parental rights of appellant-mother, K.K.1 For the reasons that follow, we affirm.


1
 The juvenile court also terminated the parental rights of father, D.H. Father is not a
party to this appeal and we will not address any findings, relative to him.
                          I. Facts and Procedural Background

       {¶ 2} J.H. was born on June 10, 2017, while mother had an open case with LCCS

regarding an older sibling. The present appeal is from the second case in dependency

filed for J.H. by LCCS.

       {¶ 3} In the months leading up to the complaint, the juvenile court awarded

temporary custody of J.H. to LCCS after a shelter care hearing on July 3, 2018, and on

November 15, 2018, the court extended temporary custody. On May 16, 2019, mother

consented to awarding legal custody of J.H. to a maternal aunt. However, on May 31,

2019, the aunt indicated she could not care for J.H., and J.H. was placed in foster care.

       {¶ 4} LCCS filed a complaint in dependency for J.H. on June 6, 2019, and the

court awarded interim temporary custody to LCCS after a shelter care hearing that same

day. The juvenile court appointed a guardian ad litem to represent J.H., as well as

counsel for both mother and father. On July 25, 2019, the court held adjudication and

disposition hearings, with J.H. adjudicated dependent and temporary custody of J.H.

awarded to LCCS. LCCS prepared a case plan, and while mother reported completion of

domestic violence services, she delayed completing her assessment and declined services

with the exception of a single counseling session.

       {¶ 5} On August 15, 2019, LCCS filed a motion for permanent custody. LCCS

argued that termination of parental rights and an award of permanent custody to LCCS

was in J.H.’s best interest, listing mother’s lengthy history with LCCS and her inability to

provide a suitable, stable home for J.H. Specifically, LCCS noted that mother had




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custody of J.H. for only a brief period between May 17 and July 3, 2018, and J.H. had

spent the majority of his life in temporary placements or with his aunt, who was unable to

care for him.

       {¶ 6} On November 18, 2019, the matter proceeded to trial on the motion for

permanent custody, with counsel for mother and father present, along with J.H.’s

guardian ad litem and counsel for the LCCS with the LCCS caseworker assigned.

Neither mother nor father appeared, with counsel for father indicating no contact despite

attempts to communicate with him. Counsel for mother indicated two contacts, despite

numerous attempts to communicate with her. The juvenile court determined that father

and mother waived their right to counsel, and permitted counsel to withdraw.

       {¶ 7} Danielle Flowers, LCCS caseworker, testified that she was the ongoing

caseworker, and first began working with mother in investigating reports of physical

abuse concerning J.H.’s sibling, shortly before J.H.’s birth. LCCS filed a complaint for

J.H.’s sibling, and after J.H. was born, LCCS filed a complaint for J.H. Relative to that

first case, Flowers indicated that mother participated in services and assessments, while

father declined to participate and moved away, ceasing all contact with J.H.2 In the first

proceeding, LCCS filed for reunification for mother with J.H. and his older sibling.3


2
  At the time of trial, LCCS had no current address for J.H.’s father. He moved from
Ohio to Tennessee shortly after J.H.’s birth, but may have relocated to Arizona. LCCS
reached out to him through J.H.’s paternal grandmother, but received no response.
3
 Custody for J.H.’s older sibling was separately adjudicated, and is not part of the
present appeal.



3.
       {¶ 8} Shortly after mother and J.H. were reunited, mother reported new incidents

of domestic violence with her new boyfriend, and seemed to acknowledge the danger her

new boyfriend presented in the home. After an unannounced home visit, however, it was

clear mother continued to live with her new boyfriend, and she refused to prevent him

from having contact with J.H. Flowers testified that mother was, once more, offered

services, but generally declined to participate. Mother completed an assessment, but

declined the recommended services. Of concern were mother’s untreated mental health

issues and her refusal to cooperate with the agency’s efforts to investigate the new

boyfriend’s identity and background. Her living situation was also unclear, with Flowers

indicating she could not determine who lived with mother in the home.

       {¶ 9} On the other hand, Flowers indicated that J.H. was doing well in foster care,

had bonded with his foster parents, and benefitted from the structured environment they

provided, as well as speech therapy through Help Me Grow. While acknowledging that

mother did visit J.H. regularly, Flowers testified that mother had a pattern of failing to

follow through, and her lifestyle choices caused concern. As part of mother’s pattern,

Flowers noted that she lost custody of two other siblings in Michigan, and had no contact

with those children, and J.H.’s older sibling was in the legal custody of a non-relative.

Flowers stated that permanent custody for LCCS would be in J.H.’s best interest.

       {¶ 10} Next, Emily McGill, J.H.’s guardian ad litem, testified. McGill testified

that she was appointed to J.H. in June 2019, and conducted an independent investigation

on his behalf, culminating in the written report submitted to the court and admitted as an




4.
exhibit. McGill testified that J.H. “has been in custody basically his whole life,” and she

had concerns regarding mother’s mental health and her attitude toward treatment. McGill

noted that mother does not take prescribed medications for her diagnosed bipolar

disorder, and when she participates in assessments, does not provide complete and

truthful information regarding her mental health history. She also noted the uncertainty

of mother’s living arrangement, with no way to verify the identity for mother’s new

boyfriend without cooperation in providing information necessary for a background

check.

         {¶ 11} As to J.H.’s foster placement, McGill indicated he is doing well, and his

foster parents are meeting all of his needs. J.H., furthermore, appeared to be on track

developmentally except for some delayed speech. McGill testified that J.H. is bonding

with his foster parents, who expressed a wish to adopt him. Based on her investigation,

McGill recommended permanent custody for LCCS would be in J.H.’s best interest.

         {¶ 12} After reviewing the testimony and the written report, the juvenile court

found by clear and convincing evidence that permanent custody to LCCS was in J.H.’s

best interests. The juvenile court found that J.H. could not be returned to mother within a

reasonable time, pursuant to R.C. 2151.414(B)(1)(a), and found clear and convincing

evidence establishing applicability of R.C. 2151.414(E)(1), (4), (11), and (16).4 As to




4
 As to father, the juvenile court also found R.C. 2151.414(E)(10) applied, finding father
abandoned J.H.



5.
reasonable efforts to prevent removal, R.C. 2151.414(E)(1), the juvenile court

determined:

              The Court further finds that LCCS made reasonable efforts to

       prevent the need for removal of the child, and the continued need for

       removal from her home, however, such efforts were unsuccessful. Said

       efforts included case plan management, visitation, and referrals to

       assessments, mental health treatment, substance abuse services and

       domestic violence services. The Court finds that although these services

       were offered, the conditions that caused the initial removal of the child

       from the parent’s care have not been remedied and the child cannot be

       returned to either parent within a reasonable period of time.

As to the remaining factors, the juvenile court noted mother’s lack of commitment

towards J.H. in failing to address ongoing and unresolved concerns for domestic

violence, substance abuse, and mental health, and failing to complete case plan services

under R.C. 2151.414(E)(4). Additionally, the juvenile court noted mother’s prior loss of

permanent custody for two of J.H.’s siblings in the state of Michigan, with no evidence

presented demonstrating any subsequent change to her situation under R.C.

2151.414(E)(11). Finally, the juvenile court considered mother’s failure to appear for

trial as relevant under R.C. 2151.414(E)(16). In considering the best interest of J.H.

pursuant to R.C. 2151.414(D)(1), the juvenile court noted that J.H. had been removed




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from mother’s custody shortly after birth, had been in nine placements since birth, and

was doing well in his current placement, a prospective adoptive home.

       {¶ 13} On December 10, 2019, the juvenile court granted the motion for

permanent custody in a written entry, reciting its findings and awarding permanent

custody to LCCS. On December 16, 2019, mother filed a timely appeal.

                                 II. Assignment of Error

       {¶ 14} Mother now appeals the judgment of the juvenile court, asserting the

following assignment of error:

              The trial court erred in finding that appellee made reasonable efforts

       to unify the child with the appellant-mother and that it is in the best interest

       of the child to terminate appellant-mother’s parental rights and to award

       permanent custody of the child to Lucas County Children Services

       (“LCCS”).

                                        III. Analysis

       {¶ 15} In her sole assignment of error, mother argues termination of her parental

rights were not in J.H.’s best interest, because LCCS failed to sustain its burden of

demonstrating reasonable efforts to prevent removal or to work toward return of J.H. to

her custody, citing R.C. 2151.419(A). “By its terms, R.C. 2151.419 applies only at

hearings held pursuant to R.C. 2151.28, 2151.31(E), 2151.314, 2151.33, or 2151.353.”

In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41, citing R.C.

2151.419(A)(1). A motion for permanent custody is governed by R.C. 2151.414, which




7.
“sets forth the procedures a juvenile court must follow and the findings it must make

before granting a motion filed pursuant to R.C. 2151.413.” In re C.F. at ¶ 22, quoting In

re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 9.

       {¶ 16} Before a juvenile court may terminate parental rights and award permanent

custody to a public services agency under R.C. 2151.414, the court must find, by clear

and convincing evidence that one of the enumerated factors in R.C. 2151.414(B)(1)(a)-(e)

apply, and that permanent custody is in the best interests of the child. R.C.

2151.414(B)(1). See In re C.F. at ¶ 23-27, quoting R.C. 2141.414(B)(1). Clear and

convincing evidence is defined as “that measure or degree of proof which is more than a

mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is

required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42,

quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of

the syllabus.

       {¶ 17} Where, as in this case, the juvenile court determines that the child cannot

be placed with either parent now or in the foreseeable future, as provided under R.C.

2151.414(B)(1)(a), it must also consider the child’s best interests and whether any of the

factors enumerated in R.C. 2151.414(E) are present. In re Za.G., Ze.G., 6th Dist.

Williams No. WM-19-019, 2020-Ohio-405, ¶ 98. Here, the juvenile court determined the

following provisions of R.C. 2151.414(E) applied:




8.
            (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

     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.

            ***

            (4) The parent has demonstrated a lack of commitment toward the

     child by failing to regularly support, visit, or communicate with the child

     when able to do so, or by other actions showing an unwillingness to provide

     an adequate permanent home for the child;

            ***

            (11) The parent has had parental rights involuntarily terminated with

     respect to a sibling of the child pursuant to this section or section 2151.353

     or 2151.415 of the Revised Code, or under an existing or former law of this

     state, any other state, or the United States that is substantially equivalent to




9.
       those sections, and the parent has failed to provide clear and convincing

       evidence to prove that, notwithstanding the prior termination, the parent can

       provide a legally secure permanent placement and adequate care for the

       health, welfare, and safety of the child.

              ***

              (16) Any other factor the court considers relevant.

       {¶ 18} Mother appeals the juvenile court’s judgment, arguing the evidence did not

support a finding that LCCS made reasonable efforts to unify her with J.H., challenging

only one basis stated by the juvenile court in support of termination of her parental rights.

We review the judgment under a manifest weight of the evidence standard. In re K.L.,

6th Dist. Lucas No. L-17-1201 and L-17-1210, 2017-Ohio-9003, ¶ 24; see also In re J.H.,

R.H., K.H., 6th Dist. Lucas No. L-19-1168, 2020-Ohio-218, ¶ 20 (additional citations

omitted).

       {¶ 19} In reviewing the decision, we consider the evidence and all reasonable

inferences, the credibility of the witnesses, and in resolving any conflicts in the evidence,

we determine whether the juvenile court lost its way, requiring reversal and new hearing

in order to remedy a manifest miscarriage of justice. In re K.L. at ¶ 24, citing State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin, 20

Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983); Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.




10.
       {¶ 20} Mother’s sole challenge to the judgment concerns the efforts of LCCS to

prevent removal, pursuant to R.C. 2151.419(A). While R.C. 2151.419(A) does not

govern a motion for permanent custody, to the extent a court relies on R.C.

2151.414(E)(1) in deciding the motion, “the court must examine the ‘reasonable case

planning and diligent efforts by the agency to assist the parents’ when considering

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

time.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, at ¶ 42, quoting

R.C. 2151.414(E)(1). “The issue in a reasonable-efforts determination is not whether the

agency could have done more, but whether it did enough to satisfy the reasonableness

standard in R.C. 2151.414(E)(1).” In re J.H., R.H., K.H., 6th Dist. Lucas No. L-19-1168,

2020-Ohio-218, ¶ 29, citing In re A.B., 6th Dist. Lucas Nos. L-12-1069 and L-12-1081,

2012-Ohio-4632, ¶ 25.

       {¶ 21} Mother does not dispute the reasonable efforts of LCCS in offering case

planning, noted by the juvenile court as including “case plan management, visitation, and

referrals to assessments, mental health treatment, substance abuse services and domestic

violence services.” Instead, mother argues she substantially complied with her case plan,

primarily citing past efforts that led to brief reunification in May 2018. Her argument of

substantial compliance, as it relates to conduct occurring after LCCS filed the June 6,

2019 complaint in dependency, lacks any support in the record.

       {¶ 22} The evidence demonstrates that, despite completing services in 2018,

mother continued to expose J.H. to domestic violence, failed to maintain stable housing,




11.
and failed to address mental health issues. Mother also failed to complete case plan

services after the most recent incident of domestic violence, with her participation

hindered by inaccurate reporting of mental health conditions and her refusal of treatment

beyond a single counseling session. The juvenile court specifically noted that, while

mother completed some services, including domestic violence services, “new incidents

occurred after completion of these services and mother has not demonstrated that she can

protect the child from domestically violent men.” Additionally, while not raised by

mother relative to the additional findings under R.C. 2151.414(E), our review of the

record demonstrates clear and convincing evidence in support of these additional

findings. Considering these separate findings, there is clear and convincing evidence of

mother’s lack of commitment to J.H. and her failure to appear for trial, with no evidence

demonstrating that, despite her prior loss of custody for J.H.’s siblings, she is now able to

provide adequate care.

       {¶ 23} As to the “best interests of the child” determination required under R.C.

2151.414(D)(1), the juvenile court considered J.H.’s nine placements since his birth in

2017, the bond established between J.H. and his foster parents, and his progress while in

his present placement, a potentially adoptive home that meets J.H.’s needs. In her brief,

mother does not challenge the juvenile court’s determinations regarding the best interests

of J.H., and we find the evidence supports these determinations. Accordingly, we find no

error in the juvenile court’s award of permanent custody to LCCS, and mother’s sole

assignment of error is not well-taken.




12.
                                     IV. Conclusion

       {¶ 24} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the costs of

this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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