[Cite as In re A.A., 2016-Ohio-2992.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




IN THE MATTER OF:                                  :
                                                          CASE NO. CA2015-12-098
                         A.A.                      :
                                                                  OPINION
                                                   :               5/16/2016

                                                   :

                                                   :



            APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. 2015JC04725



Mary K. Phillips, 285 East Main Street, Batavia, Ohio 45103, Guardian Ad Litem

Dever Law Firm, Scott A. Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio
45069, for appellant

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee



        S. POWELL, J.

        {¶ 1} Appellant, the biological mother of A.A., appeals from the decision of the

Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of

her daughter to appellee, Clermont County Department of Job and Family Services

("CCDJFS"). For the reasons outlined below, we affirm.

        {¶ 2} On January 23, 2015, CCDJFS filed a complaint seeking permanent custody of
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A.A. alleging she was a dependent child after it received a report that both her mother

("Mother") and father ("Father") were observed under the influence of drugs. The complaint

also described concerns regarding A.A.'s current living conditions with her maternal

grandmother ("Grandmother") that included allegations of "hoarding and pet feces throughout

the home." The complaint then noted that "there are 8 children living there and the caregiver

[Grandmother] is already overwhelmed." The complaint further noted that both Mother and

Father had "their parental rights terminated in Adams [C]ounty in January 2014" for A.A.'s

then two-year-old brother, J.A. At the time the complaint was filed, A.A. was nine months old.

       {¶ 3} After holding an emergency hearing on the matter, the juvenile court placed

A.A. in the temporary custody of CCDJFS and appointed her a guardian ad litem. A.A. was

then placed in a foster home with the same foster family that had previously adopted her

brother J.A. Approximately two months later, on March 27, 2015, Grandmother filed a

complaint seeking legal custody of A.A. In support of her complaint, Grandmother alleged

she had been caring for A.A. since she was born, that she had custody of A.A.'s other seven

brothers and sisters, and that she wanted to "raise the children together as a family."

However, later that same day, Grandmother dismissed her complaint. The juvenile court

then adjudicated A.A. a dependent child and scheduled a dispositional hearing before a

juvenile court magistrate for July 10, 2015.

       {¶ 4} At the hearing, the magistrate heard testimony from the guardian ad litem,

Mother, Grandmother, and A.A.'s foster mother, among others. Following this hearing, on

July 24, 2015, the magistrate issued a decision granting permanent custody of A.A. to

CCDJFS. Mother then filed objections to the magistrate's decision, which the juvenile court

subsequently overruled in a decision issued on November 19, 2015. Mother now appeals

from the juvenile court's decision to grant permanent custody of A.A. to CCDJFS, raising the

following single assignment of error for review.

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       {¶ 5} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION

AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE AGENCY

DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 6} In her single assignment of error, Mother argues the juvenile court's decision to

grant permanent custody of A.A. to CCDJFS was against the manifest weight of the

evidence. We disagree.

       {¶ 7} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v.

Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). Generally, an appellate court's review of

a juvenile court's decision granting permanent custody is limited to considering whether

sufficient credible evidence exists to support the juvenile court's determination. In re M.B.,

12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. However,

even if the juvenile court's judgment is supported by sufficient evidence, "an appellate court

may nevertheless conclude that the judgment is against the manifest weight of the evidence."

In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.

       {¶ 8} In determining whether a decision is against the manifest weight of the

evidence, an appellate court "weighs the evidence and all reasonable 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 trial ordered." Eastley v. Volkman, 132 Ohio St.3d

328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the evidence is in favor of the

finder of fact, which we are especially mindful of in custody cases. In re C.Y., 12th Dist.

Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶
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25. As a result, "[i]f the evidence is susceptible to more than one construction, the reviewing

court is bound to give it that interpretation which is consistent with the verdict and judgment,

most favorable to sustaining the verdict and judgment." Eastley at ¶ 21.

        {¶ 9} A public children services agency may obtain permanent custody of an abused,

neglected, or dependent child in one of two ways. In re Ament, 142 Ohio App.3d 302, 309

(12th Dist.2001); In re E.P., 12th Dist. Fayette Nos. CA2009-11-022 and CA2009-11-023,

2010-Ohio-2761, ¶ 22. An agency may either (1) obtain temporary custody of the child and

then file a motion for permanent custody, or (2) request permanent custody as part of its

original abuse, neglect, or dependency complaint. In re T.K.K., 12th Dist. Butler No.

CA2012-01-008, 2012-Ohio-3203, ¶ 22. As noted above, CCDJFS filed a complaint seeking

permanent custody of A.A. alleging she was a dependent child. Therefore, the statutory

framework for granting permanent custody as found in R.C. 2151.353(A)(4) applies to the

case at bar.1 In re W.R., 12th Dist. Fayette No. CA2011-08-016, 2012-Ohio-382, ¶ 30.

        {¶ 10} Pursuant to R.C. 2151.353(A)(4), in order to grant permanent custody as part of

its original disposition, such as the case here, a juvenile court must apply a two-prong test.

In re T.K.K. at ¶ 23. First, using the factors in R.C. 2151.414(E), the court must determine

that the child cannot be placed with either parent within a reasonable time or should not be

placed with either parent. Id. Second, using the factors in R.C. 2151.414(D)(1), the court

must determine that permanent custody is in the best interest of the child. Id.

        {¶ 11} In this case, the juvenile court determined that A.A. could not be placed with

either of her parents within a reasonable time or should not be placed with either of her




1. As the record reveals, both parties rely on R.C. 2151.414(B)(1), a statute that generally applies when a public
children services agency files a motion for permanent custody after an initial disposition finding a child abused,
neglected, or dependent. This is the same statute the juvenile court applied in granting permanent custody of
A.A. to CCDJFS in this case. Nevertheless, although applying the wrong statutory framework, the juvenile court
nevertheless made the necessary findings for granting permanent custody as required by R.C. 2151.353(A)(4).
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parents in accordance with R.C. 2151.414(E)(11). Pursuant to that statute:

              (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:

              ***

              (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, * * * 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.

       {¶ 12} Such is the case here for the record firmly establishes that both Mother and

Father had their parental rights to A.A.'s brother, J.A., involuntarily terminated by the Adams

County Court of Common Pleas, Juvenile Division, on January 28, 2014. The record also

plainly reveals that neither Mother, who admittedly does not have permanent housing, nor

Father, who is incarcerated, can provide a legally secure placement and adequate care for

the health, welfare, and safety of their daughter. In reviewing her brief submitted in this

matter, Mother does not dispute these findings. Instead, Mother raises a manifest weight of

the evidence challenge to the juvenile court's decision finding it was in A.A.'s best interest to

grant permanent custody to CCDJFS.

       {¶ 13} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing:

              [T]he court shall consider all relevant factors, including, but not
              limited to the following:

              (a) The interaction and interrelationship of the child with the

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              child's parents, siblings, relatives, foster caregivers and out-of-
              home providers, and any other person who may significantly
              affect the child;

              (b) The wishes of the child, as expressed directly by the child or
              through the child's guardian ad litem, with due regard for the
              maturity of the child;

              (c) 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 * * *;

              (d) 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;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this
              section apply in relation to the parents and child.

       {¶ 14} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found Mother has

bonded with A.A. In addition, unlike Father who has shown absolutely no interest in

maintaining a relationship with his daughter, the juvenile court determined that Mother visited

her daughter on a weekly basis while A.A. was in the temporary custody of CCDJFS.

However, concerns were raised when Mother was observed giving A.A. soda pop and coffee

during at least one of these visits. The juvenile court also found that while Grandmother

cares for and has custody of A.A.'s other seven brothers and sisters, there were significant

concerns regarding the cleanliness of both the home and the children. This includes

testimony from the guardian ad litem indicating the home was in "very, very poor" condition,

as well as evidence indicating A.A. had lice and severe diaper rash upon her removal from

Grandmother's home. The juvenile court also noted that the record was devoid of any

evidence indicating what kind of direct interaction Grandmother had with A.A.

       {¶ 15} The juvenile court found that A.A. had been removed from Grandmother's

home and been placed with the same foster family that adopted her brother J.A. According

to the juvenile court, A.A. and J.A. have a typical brother-sister relationship with one another.

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In addition, the juvenile court found A.A., who is described by her foster family as being bright

and very active, has learned to walk while in their home. The juvenile court also found A.A.

enjoys playing with a variety of toys and being outside. The juvenile court further noted that

A.A. has been given the medical attention she requires now that she has been placed in

foster care and that she is current on all her immunizations. The record also indicates A.A.'s

foster family wanted to adopt A.A. should permanent custody be granted to CCDJFS.

       {¶ 16} In consideration of R.C. 2151.414(D)(1)(b), the juvenile court noted that A.A.

was unable to express her desire due to her young age. However, the juvenile court did note

that the guardian ad litem recommended granting permanent custody of A.A. to CCDJFS.

According to the guardian ad litem's report, this recommendation was based on Mother and

Father's continued serious substance abuse problems and lack of financial resources. The

guardian ad litem's report also noted that A.A. had lice and severe diaper rash when she was

removed from her "filthy home" prior to being adjudicated dependent.

       {¶ 17} Next, when taking into account R.C. 2151.414(D)(1)(c), the juvenile court found

A.A. had been in the custody of CCDJFS since her removal from Grandmother's home on

January 23, 2015. At the time of her removal, A.A. was nine months old.

       {¶ 18} With regard to R.C. 2151.414(D)(1)(d), the juvenile court found A.A. was in

need of legally secure placement through the granting of permanent custody to CCDJFS. In

so finding, the juvenile court denied Mother's claim that placement of A.A. with Grandmother

or with her cousin ("Cousin") was in her daughter's best interest since "neither the

grandmother nor the mother's cousin had a motion for legal custody before the Court at the

time that the permanent custody matter was heard." The juvenile court also noted that there

was testimony indicating Grandmother's home was "very chaotic," "extremely dirty," and

overly crowded with at least seven other children then living in the home. As the juvenile

court determined, "[a]t some point there has to be a limit * * * to the number of children that
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the grandmother can safely handle." As it relates to Cousin, the juvenile court found the

testimony indicated he was "satisfied with the child's placement as long as she receives the

care that she needs."

       {¶ 19} Finally, with respect to R.C. 2151.141(D)(1)(e), the juvenile court determined

that R.C. 2151.141(E)(11) applied since, as noted above, both Mother and Father had their

parental rights to A.A.'s brother, J.A., involuntarily terminated by the Adams County Court of

Common Pleas, Juvenile Division, on January 28, 2014.

       {¶ 20} Despite these findings, Mother argues the juvenile court's decision to grant

permanent custody to CCDJFS was not in A.A.'s best interest since A.A. could have been

placed in the custody of her relatives, presumably either Grandmother or Cousin. However,

as noted above, neither Grandmother nor Cousin had a motion for legal custody pending

before the juvenile court prior to the juvenile court issuing its decision. Moreover, the record

firmly establishes that Grandmother was already taking care of at least seven other children

in an overly crowded home that had been characterized as "very chaotic" and "extremely

dirty." The juvenile court also found that A.A. had lice and severe diaper rash upon her

removal from Grandmother's home.

       {¶ 21} Furthermore, as it relates to Cousin, the juvenile court determined that the

testimony indicated he was "satisfied with the child's placement as long as she receives the

care that she needs." The record supports this finding. Therefore, while it is understandable

for Mother to want her daughter to be with family, as this court has stated previously, "[w]hile

'blood relationship' and 'family unity' are factors to consider when determining a child's best

interest, neither one is controlling." In re S.K.G., 12th Dist. Clermont No. CA2008-11-105,

2009-Ohio-4673, ¶ 12. Accordingly, since the record fully supports the juvenile court's

decision finding it was in A.A.'s best interest to be placed in the permanent custody of

CCDJFS, Mother's first argument is without merit.
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       {¶ 22} Mother also argues the juvenile court's decision to grant permanent custody of

A.A. to CCDJFS was improper since CCDJFS did not make "reasonable efforts" to reunify

A.A. with her family. However, pursuant to R.C. 2151.419(A)(2)(e), the juvenile court

magistrate concluded that CCDJFS was not required to make reasonable efforts to eliminate

the continued removal of A.A. from her home since both Mother and Father had their

parental rights involuntarily terminated with respect to A.A.'s brother J.A. As relevant here,

R.C. 2151.419(A)(2)(e) mandates the juvenile court to "make a determination that the agency

is not required to make reasonable efforts to * * * eliminate the continued removal of the child

from the child's home, and return the child to the child's home" when "[t]he parent from whom

the child was removed has had parental rights involuntarily terminated with respect to a

sibling of the child pursuant to section 2151.353, 2151.414, or 2151.415 of the Revised

Code[.]" The magistrate further concluded that "[t]o the extent that [CCDJFS] was required to

make reasonable efforts to reunify the parents with the child, [CCDJFS] made such efforts."

       {¶ 23} After a thorough review of the record, we find no error in the magistrate's

decision regarding the application of R.C. 2151.419(A)(2)(3) to the case at bar. Again,

because the record firmly establishes that both Mother and Father had their parental rights

involuntarily terminated with respect to A.A.'s brother J.A., the plain language of R.C.

2151.419(A)(2)(e) mandated the juvenile court find CCDJFS was not required to make

reasonable efforts to eliminate A.A.'s continued removal from her home. That is exactly what

the magistrate concluded as part of its decision, a decision that was subsequently adopted

and affirmed by the juvenile court. Therefore, because we find no error in the juvenile court's

decision, Mother's second argument is also without merit.

       {¶ 24} In light of the foregoing, and after carefully reviewing the record in this case, we

find the juvenile court's findings are supported by sufficient, credible evidence and are

otherwise not against the manifest weight of the evidence. Therefore, while Mother may
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have wanted custody to be granted to either Grandmother or Cousin, we find no error in the

juvenile court's decision finding it was in A.A.'s best interest to be placed in the permanent

custody of CCDJFS. Accordingly, Mother's single assignment of error is overruled.

       {¶ 25} Judgment affirmed.


       PIPER, P.J., and HENDRICKSON, J., concur.




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