[Cite as In re K.H., 2020-Ohio-776.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

IN RE: K.H.                                           C.A. No.      29555



                                                      APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
                                                      COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
                                                      CASE No.   DN-17-04-0262

                                 DECISION AND JOURNAL ENTRY

Dated: March 4, 2020



        CARR, Presiding Judge.

        {¶1}     Appellant, C.C. (“Mother”), appeals from a judgment of the Summit County

Court of Common Pleas, Juvenile Division, that terminated her parental rights and placed her

minor child in the permanent custody of Summit County Children Services Board (“CSB”). This

Court affirms.

                                                 I.

        {¶2}     Mother is the biological mother of K.H., born April 14, 2017. The child’s father

did not participate in the trial court proceedings and did not appeal from the judgment.

        {¶3}     On April 17, 2017, CSB filed a complaint to allege that K.H. was a dependent

child because Mother’s three older children had been placed in the legal custody of other adults

and she continued to suffer from the same parenting problems. CSB’s greatest concern was the

instability in Mother’s life and her tendency to rely on abusive men and other adults who take

advantage of her and put her children in harm’s way. One of Mother’s older children was
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removed because Mother failed to protect the child from severe physical abuse in the home.

K.H. was later adjudicated a dependent child and placed in the temporary custody of CSB.

       {¶4}    During this case, Mother engaged in counseling to help her develop insight and

set boundaries to protect herself and her children from inappropriate adults. She also worked on

improving her problem-solving skills.        Although Mother complied with many of the

requirements of the case plan for more than one year, she failed to demonstrate the ability to

implement much of what she had learned. Mother continued to need the assistance of service

providers to redirect her behavior and help her care for K.H. during visits.         Mother also

continued her unhealthy relationship with an abusive man.

       {¶5}    On March 26, 2019, CSB moved for permanent custody of K.H.                 Mother

alternatively moved for legal custody of the child, as did a nonrelative who has legal custody of

one of the K.H.’s older half-siblings.    Following a hearing on the competing dispositional

motions, the trial court found that K.H. had been in the temporary custody of CSB for at least 12

months of a consecutive 22-month period and that permanent custody was in the child’s best

interest. Mother appeals and raises two assignments of error.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(D)
       WHEN [CSB] HAD NOT HAD AGENCY INVOLVEMENT WITH K.H. FOR
       AT LEAST TWENTY-TWO CONSECUTIVE MONTHS.

       {¶6}    Through her first assignment of error, Mother challenges the trial court’s finding

that the “12 of 22” prong of the permanent custody test was satisfied under R.C.

2151.414(B)(1)(d). R.C. 2151.414(B)(1)(d) provides that an agency establishes the first prong of

the permanent custody test if it proves that “[t]he child has been in the temporary custody of one
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or more public children services agencies * * * for twelve or more months of a consecutive

twenty-two-month period[.]”

       {¶7}    Mother makes a legal argument, that this Court has previously rejected, that the

“12 of 22” provision is satisfied only if the child has been in temporary custody of a children

services agency for at least 12 months of a consecutive 22-month period of agency involvement.

This Court explicitly rejected this legal interpretation of the language of R.C. 2151.414(B)(1)(d)

in In re J.C., 9th Dist. Summit No. 28865, 2018-Ohio-2555, ¶ 10-13. This legal issue is also

currently pending before the Ohio Supreme Court on a certified conflict in In re N.M.P.,

Supreme Court Case No. 2018-1842.

       {¶8}    Even if this Court were to accept Mother’s interpretation of R.C.

2151.414(B)(1)(d), she has failed to demonstrate any potential error under the undisputed facts

of this case. At the time CSB moved for permanent custody, K.H. had been in its temporary

custody for 21 months and the agency had been involved with the family for 23 consecutive

months since it filed the complaint and assumed emergency temporary custody of the child.

Because Mother cannot demonstrate reversible error in the trial court’s “12 of 22” finding, her

first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       PLACING K.H. IN THE PERMANENT CUSTODY OF CSB AS THE
       DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING
       EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE
       EVIDENCE.

       {¶9}    Mother’s second assignment of error is that the trial court’s decision was against

the manifest weight of the evidence. In considering whether the juvenile court's judgment is

against the manifest weight of the evidence, this Court “weighs the evidence and all reasonable
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inferences, considers the credibility of witnesses and determines whether in resolving conflicts in

the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of

justice that the [judgment] must be reversed and a new [hearing] ordered.” (Internal quotations

and citations omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When

weighing the evidence, this Court “must always be mindful of the presumption in favor of the

finder of fact.” Id. at ¶ 21.

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

custody of a child to a proper moving agency it must find clear and convincing evidence of both

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the

child or another child in a parent’s custody has been adjudicated abused, neglected, or dependent

on three separate occasions; or the child cannot be placed with either parent within a reasonable

time or should not be placed with either parent, based on an analysis under R.C. 2151.414(E);

and (2) that the grant of permanent custody to the agency is in the best interest of the child, based

on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also

In re William S., 75 Ohio St.3d 95, 99 (1996).

        {¶11} The trial court found that the first prong of the permanent custody test was

satisfied because K.H. had been in the temporary custody of CSB for at least 12 months of a

consecutive 22-month period.       See R.C. 2151.414(B)(1)(d).      As explained in this Court’s

disposition of Mother’s first assignment of error, that finding was fully supported by the

evidence in the record.

        {¶12} Next, the trial court found that permanent custody was in the best interest of K.H.

Mother’s best interest argument focuses primarily on evidence that she had made progress on the
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reunification goals of the case plan. Although a parent’s case plan compliance may be relevant

to the child’s best interest, it is not dispositive. In re G.L.S., 9th Dist. Summit No. 28874, 2018-

Ohio-1606, ¶ 20, citing In re G.A., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13.

       {¶13} Moreover, although Mother had made some progress on the case plan goals,

several witnesses expressed concern that Mother could not provide an appropriate home for K.H.

Mother had a history of relying on violent men and allowing them to control her life and put her

children at risk. Despite engaging in counseling to develop insight into how these relationship

patterns affected the safety of herself and her children, Mother continued her romantic

relationship with the alleged father of K.H., whom she admitted was a drug abuser who was also

physically violent with her. Moreover, K.H.’s alleged father had never established paternity of

K.H. and refused to cooperate with CSB or have any involvement in this case.

       {¶14} When determining the child’s best interest under R.C. 2151.414(D), the juvenile

court must consider all relevant factors, including the interaction and interrelationships of the

child, the child’s wishes, the custodial history of the child, the need for permanence in the child’s

life, and whether any of the factors set forth in R.C. 2151.414(E)(7) to (11) apply to the facts of

the case. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio-

6284, ¶ 11. None of the factors in R.C. 2151.414(E)(7) to (11) apply to the facts of the case.

       {¶15} Mother’s interaction with K.H. was initially limited to supervised visits. Mother’s

visits briefly expanded to unsupervised visits in her home, but the visits were later relocated and

supervised by CSB due to concerns that Mother was not appropriately feeding or caring for K.H.

K.H. has a swallowing disorder that requires her to eat thickened foods and she also exhibits

several developmental delays. Although Mother attended most of K.H.’s medical appointments,

she did not demonstrate the ability to properly feed the child or to address her other special
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needs. The caseworker testified that she had to repeatedly redirect Mother’s behavior during

supervised visits.

       {¶16} Because K.H. was only two years old at the time of the hearing, the guardian ad

litem spoke on her behalf. She opined that permanent custody was in the child’s best interest

because Mother continued to lack insight into her problems as a parent and had never accepted

responsibility for the removal of K.H. from her custody. The guardian also expressed concern

that Mother had not been honest about her continuing relationship with the alleged father of K.H.

       {¶17} K.H. has spent her entire life outside of Mother’s custody. She was released from

the hospital after her birth and placed in the emergency temporary custody of CSB and then its

temporary custody. She remained in the agency’s custody throughout this case and has resided

with two different foster families.

       {¶18} Because K.H. had spent her entire two-year life living in temporary placements,

she needed a legally secure permanent placement. Mother was not prepared to provide her with

a stable home and CSB had been unable to find any suitable relatives who were willing and able

to do so.    Although the legal custodians of one of Mother’s older children filed a motion for

legal custody near the end of this case, they had not established a relationship with K.H. but had

met her only a few times.

       {¶19} Mother has failed to demonstrate that the trial court lost its way in concluding that

permanent custody was in the best interest of K.H. Mother’s second assignment of error is

overruled.

                                               III.

       {¶20} Mother’s assignments of error are overruled.         The judgment of the Summit

County Court of Common Pleas, Juvenile Division, is affirmed.
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                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     DONNA J. CARR
                                                     FOR THE COURT


HENSAL, J.
SCHAFER, J.
CONCUR.


APPEARANCES:

SHUBHRA N. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGAN, Assistant
Prosecuting Attorney, for Appellee.

CHRISTINA BOLLMAN, Guardian ad Litem.
