[Cite as In re K.H., 2010-Ohio-3801.]




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




IN THE MATTER OF:

        K. H.,                                              CASE NO. 5-10-06

ALLEGED NEGLECTED AND
DEPENDENT CHILD,
                                                            OPINION
[AMBER HIGGINBOTHAM -
    APPELLANT].




                 Appeal from Hancock County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 20930009

                                        Judgment Affirmed

                            Date of Decision: August 16, 2010




APPEARANCES:

        Nicole M. Winget for Appellant

        Mark C. Miller and Benjamin E. Hall for Appellee
Case No. 5-10-06


ROGERS, J.

        {¶1} Mother-Appellant, Amber Higginbotham, appeals the judgment of

the Court of Common Pleas of Hancock County, Juvenile Division, granting

permanent custody of her child, K.H., to the Hancock County Job and Family

Services, Children Protective Services Unit (hereinafter “CPSU”). On appeal,

Mother contends that the trial court’s judgment granting CPSU permanent custody

was against the manifest weight of the evidence; that the trial court erred by not

making a finding on the record as to K.H.’s wishes and not appointing him

separate counsel; that the trial court erred in granting CPSU permanent custody

because it was not in K.H.’s best interest; that the trial court’s finding that Mother

abandoned K.H. was not supported by clear and convincing evidence; and, that

CPSU failed to use reasonable case planning and diligent efforts to achieve

reunification. Based upon the following, we affirm the judgment of the trial court.

        {¶2} In February 2009, CPSU filed a complaint alleging that K.H. was a

neglected child pursuant to R.C. 2151.03. Additionally, CPSU requested ex-parte

temporary custody of K.H. Service of the complaint to Mother and the purported

biological father was facilitated by publication.1 Shortly thereafter, the trial court

granted CPSU emergency temporary custody and appointed a Court Appointed

Special Advocate/Guardian ad Litem (hereinafter “GAL”) to represent K.H.


1
  At that point in time, Mother had identified a possible father of K.H. who was later eliminated as the
father after administration of a paternity test.


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      {¶3} In March 2009, the GAL filed a report stating that CPSU became

involved in the case when K.H.’s caretaker, his maternal grandmother, turned the

child over to the police department because she was unable to care for him due to

her own health issues and K.H.’s extensive health issues. At that time, Mother

was living in Chicago, Illinois, and K.H.’s biological father was unknown.

      {¶4} In April 2009, CPSU submitted a case plan, which the trial court

approved. The case plan recommended that Mother participate in home-based

therapy to develop her parenting skills and knowledge; that Mother report to

Century Health and participate in a life skills group; that Mother provide a safe

and stable home for K.H.; that Mother undergo a mental health and substance

abuse assessment; and, that K.H. receive counseling services.

      {¶5} In August 2009, the trial court conducted a semiannual case plan

review.   The CPSU case progress review provided that Mother had made

insufficient progress towards developing additional life skills because she had not

participated in the group at Century Health as required; that Mother had made

insufficient progress towards receiving mental health and substance abuse

assessments because she had not participated in these assessments as required; that

K.H. had made significant progress toward receiving counseling services, as he

had been working with a therapist and taking medication; that Mother had made

insufficient progress towards acquiring parenting knowledge and skills as she had



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not participated in any home-based therapy or other parenting programs; and, that

Mother had made insufficient progress toward providing a safe and stable living

environment for K.H. The CPSU report concluded that Mother had not made

significant progress toward addressing the case plan concerns.

      {¶6} In November 2009, CPSU filed a motion for permanent custody of

K.H. pursuant to R.C. 2151.353, 2151.413, and 2151.414 on the bases that it was

in K.H.’s best interest; that K.H. was abandoned; and, that, alternatively, K.H.

could not or should not be placed with either parent within a reasonable time.

K.H.’s unknown father2 was served via publication

      {¶7} In January 2010, the trial court held a hearing on the motion for

permanent custody, at which the following testimony was heard.

      {¶8} Robin Brown, a mental health therapist at Century Health, testified

that she had never met with Mother; that Century Health received a notice in

February 2009 that Mother was ordered to attend services at that agency; that,

since that time, neither she nor anyone else at Century Health had been contacted

by Mother to begin services; that Century Health had not conducted a mental

health or substance abuse assessment on Mother; that Mother also never contacted

Century Health to begin the Life Skills program; and, that Mother also never

began the substance abuse program at Century Health. On cross-examination,




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Brown testified that, if Mother contacted the agency, she could still take part in

these programs, and that she did not know if there were any agencies comparable

to Century Health in Dayton, Ohio.

         {¶9} Mark Olthouse, a caseworker at CPSU, testified that he had been

K.H.’s caseworker since February 2009, when he came into the agency’s custody;

that the agency attempted to identify K.H.’s father by administering paternity tests

to several men alleged by Mother to be the father, which excluded those men as

the father, and by contacting the putative father registry; that, despite notification

via publication, no one presented himself as K.H.’s father; that Mother never

identified any other potential fathers to him; that Mother had not visited K.H.

since June 12, 2009, or made any phone calls or sent gifts; that, on the date K.H.

was removed from his grandmother’s home, Mother could not be located; that

Mother later appeared at a court hearing; that the agency was concerned with

placing K.H. back in Mother’s custody because she had little involvement with

him according to several relatives, because she had no permanent residence and

had been living in Illinois and New York, and because she told him directly that

she could not care for him; that he conducted a home visit with Mother at the

grandmother’s home in March 2009, at which Mother indicated she could not



2
 Mother identified several men who had possibly fathered K.H.; however, all of the men were eliminated
as K.H.’s father after administration of paternity tests. The record does not demonstrate that K.H.’s father
was ever identified.


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Case No. 5-10-06


provide food and housing for K.H.; that he informed Mother about a transitional

facility called “Hope House” through which she could obtain housing and job

training; that Mother did not follow through with the facility; that he requested

that Mother inform him of any changes of address, which she did not do, and he

was uncertain of where she was living from April through July 2009; that, in

August 2009, he learned through the grandmother that Mother was living in

Dayton, Ohio; that he left, at a minimum, monthly voice messages at the phone

number provided to him by the grandmother; that Mother did not return his phone

calls; that Mother did not complete any of the case plan objectives; that, between

Mother’s first visit with K.H. on April 3, 2009, and her last visit on June 12, 2009,

she only visited two other times; that he had never been contacted by an agency in

Dayton indicating that Mother was receiving any type of social services through

that agency; that he did not believe a six-month extension of temporary custody

would change Mother’s compliance with the case plan; that K.H.’s relationship

with Mother was casual at best; that K.H. had never inquired as to Mother’s

whereabouts; that K.H. was bonded with his foster parents; that he believed

CPSU’s permanent custody was in K.H.’s best interest; that K.H. needed a

permanent adoptive home and had not had permanency in the past; that the agency

had personally referred Mother for services for mental health, substance abuse, life




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skills, home-based therapy, parenting skills, and visitation; and, that K.H. had a

high probability of being adopted.

       {¶10} On cross examination, Olthouse testified that K.H.’s current foster

parents had expressed that they would not adopt him because they had a newborn

child in the home; that he did not give Mother any literature about the Hope

House; that he did not tell her where to send any potential correspondence to K.H.;

and, that Mother left him a voice message on April 15, 2009, informing him that

she had an appointment scheduled with Robin Brown at Century Health, but had

to cancel it because she had no transportation.

       {¶11} Mother testified that she had not visited K.H. since June 2009; that,

two weeks prior to the hearing, she went to the visitation center, but she had not

called prior to arriving so K.H. was not there or available for visitation; that she

had not visited with K.H. for months when she lived in Findlay because it was “a

long walk” and she had no other transportation; that Olthouse gave her ten bus

tickets, but she ran out and was unable to get more; that she moved to the Dayton

area in August 2009 and was not able to visit K.H. because the visitations were

scheduled on Fridays when her boyfriend was working and was unable to drive

her; that she did not follow through with the mental health/substance abuse

counseling objective because of transportation issues; that she had attempted to

create a safe and stable living environment for K.H. by moving into her



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boyfriend’s apartment in Dayton; that she was looking for employment and had

applied for social security; and, that she “would love to take parenting classes.”

(Hearing Tr., p. 78).

       {¶12} Mother testified on cross-examination that she gave birth to K.H.

when she was incarcerated for drug trafficking; that, even after being released

from prison, she was unable to care for K.H.; that her mother, K.H.’s grandmother,

cared for him; that she had never cared for K.H. for an extended period of time;

that, when she was living in Findlay, she did not ask Olthouse for more bus tickets

or tell him that she could not afford bus tickets to transport her to visitations with

K.H.; that she did not think it was CPSU’s fault that she did not inform them about

her transportation issues; that she had moved multiple times between different

relatives and visiting a friend in Chicago; that she and her boyfriend began dating

in August 2009, which is when she moved in with him; that she did not think it

would be harder to see K.H. once she moved to Dayton because her boyfriend had

transportation; that she did not ask Olthouse to schedule the visitations on a date

and time when her boyfriend could drive her; that, she understood that K.H. was

not kept at the visitation center and that she needed to call to let the foster parents

know to take him for the visitation, but that she did not call when she attempted to

visit two weeks prior to the hearing; that she had been “calling around” to see if

there was an agency offering parenting classes in Dayton for about three or four



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months, but had not attended any parenting classes; that she had not called CPSU

to see if they could assist her with financing parenting classes; that she had been

addicted to cocaine and marijuana in the past, but was not currently addicted to a

substance; that she had not contacted CPSU to ask them to evaluate her

boyfriend’s apartment in Dayton to see if it was appropriate for K.H.; and, that she

had not even contacted CPSU to inform them of her Dayton address prior to

learning of the permanent custody motion.

       {¶13} James Kelly testified that he had served as K.H.’s GAL from March

2009 until the point of the hearing; that he prepared a report for the trial court; that

he recommended the trial court award permanent custody of K.H. to CPSU; and,

that he did not believe CPSU could have done more to achieve reunification of

Mother with K.H.

       {¶14} Additionally, the GAL submitted a report and recommendations to

the trial court, including, in part, a section entitled “Wishes of the Child,” stating

that, “[t]his child is only four years of age. He has bonded with his foster care

parents and the foster care extended family.         [K.H.] rarely spoke and never

expressed himself during any of my visits with him. I believe the wishes of this

child would be to remain with these foster care parents or to be placed into

adoption with loving and caring adoptive parents or adoptive parent.” (Report and

Recommendations of CASA/GAL, p. 5). Further, the report provided that K.H.



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was “slightly behind in his developmental growth,” was being treated for mental

health issues, and was taking part in classes for speech, therapy,3 social skills, and

counseling. (Id).

        {¶15} Thereafter, the trial court found pursuant to R.C. 2151.414(C), and

by clear and convincing evidence, that 1) K.H. could not be placed with Mother

within a reasonable time under R.C. 2151.414(B)(1)(a) because she had

continuously and repeatedly failed to substantially remedy the conditions that

caused K.H. to be removed from the home and failed to utilize the services

available to her; 2) it was in K.H.’s best interest that CPSU have custody pursuant

to all of the relevant factors in R.C. 2151.414(D)(1) through (5) and

2151.414(E)(7) to (11), particularly the lack of relationship of K.H. with his

parents and relatives, his need for legally secure permanent placement, the

unlikelihood of this type of placement without granting of permanent custody to

CPSU, and the custodial history of K.H., as well as his desires as expressed

through his GAL; and 3) K.H. was abandoned by his parents, as his father was

unknown and his mother had failed to visit him for the seven-month period

preceding the hearing.        Accordingly, the trial court granted CPSU permanent

custody of K.H. pursuant to R.C. 2151.414(A).




3
  The Report and Recommendations of the CASA/GAL refer to classes in “speech, therapy.” However, it
is unclear whether this statement is a typographical error intended to read “speech therapy.”


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      {¶16} It is from this judgment that Mother appeals, presenting the

following assignments of error for our review.

                            Assignment of Error No. I

       THE JUDGMENT OF THE TRIAL COURT TO GRANT
       HANCOCK COUNTY JOB AND FAMILY SERVICES
       PERMANENT CUSTODY WAS CONTRARY TO THE
       MANIFEST WEIGHT OF THE EVIDENCE.

                           Assignment of Error No. II

       THE TRIAL COURT ERRED BY NOT MAKING A FINDING
       ON THE RECORD AS TO THE WISHES OF THE
       CHILDREN [SIC] AND NOT APPOINTING THEM
       SEPARATE COUNSEL.

                           Assignment of Error No. III

       THE TRIAL COURT ERRED IN GRANTING PERMANENT
       CUSTODY FOR THE CHILD BECAUSE IT WAS NOT IN
       HIS BEST INTEREST.

                           Assignment of Error No. IV

       THE TRIAL COURT’S FINDING OF ABANDONMENT IS
       NOT SUPPORTED BY CLEAR AND CONVINCING
       EVIDENCE.

                           Assignment of Error No. V

       THE HANCOCK COUNTY JOB AND FAMILY SERVICES
       FAILED ITS DUTY TO USE REASONABLE CASE
       PLANNING    AND    DILIGENT    EFFORTS AND
       REUNIFICATION WITH THE PARENT.




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       {¶17} Due to the nature of Mother’s arguments, we elect to address her

first and fourth assignments of error together, and her second and third

assignments of error together, preceded by a discussion of the standard of review.

                                Standard of Review

       {¶18} Our review of a grant of permanent custody begins by noting that

“[i]t is well recognized that the right to raise a child is an ‘essential’ and ‘basic’

civil right.” In re Hayes (1997), 79 Ohio St.3d 46, 48, citing In re Murray (1990),

52 Ohio St.3d 155, 157. Parents have a fundamental liberty interest in the care,

custody, and upbringing of their children. Murray, 52 Ohio St.3d at 157; Santosky

v. Kramer (1982), 455 U.S. 745, 753. However, a natural parent’s rights are not

absolute. In re Thomas, 3d Dist. No. 5-03-08, 2003-Ohio-5885, ¶7. “It is plain

that the natural rights of a parent are not absolute, but are always subject to the

ultimate welfare of the child, which is the polestar or controlling principle to be

observed.” In re Cunningham (1979), 59 Ohio St.2d 100, 106 (citation omitted).

       {¶19} Permanent custody determinations made under R.C. 2151.414 must

be supported by clear and convincing evidence. In re Baby Girl Doe, 149 Ohio

App.3d 717, 2002-Ohio-4470, ¶89, citing In re Hiatt (1993), 86 Ohio App.3d 716,

725. Clear and convincing evidence is “[t]he measure or degree of proof that will

produce in the mind of the trier of fact a firm belief or conviction as to the

allegations sought to be established. It is intermediate, being more than a mere



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preponderance, but not to the extent of such certainty as required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”

In re Estate of Haynes (1986), 25 Ohio St.3d 101, 104. In addition, when “the

degree of proof required to sustain an issue must be clear and convincing, a

reviewing court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” Cross v.

Ledford (1954), 161 Ohio St. 469, 477, citing Ford v. Osborne (1887), 45 Ohio St.

1. Thus, we are required to determine whether the trial court’s determination was

supported by sufficient credible evidence to satisfy the requisite degree of proof,

In re McCann, 12th Dist. No. CA2003-02-017, 2004-Ohio-283, ¶12, citing In re

Starkey, 150 Ohio App.3d 612, 2002-Ohio-6892, ¶16, and, absent an abuse of

discretion, the trial court’s decision must be upheld. In re Robison, 3d Dist. No. 5-

07-41, 2008-Ohio-516, ¶8, citing Masters v. Masters (1994), 69 Ohio St.3d 83, 85;

see, also, In re Rinaldi, 3d Dist. No. 1-02-74, 2003-Ohio-2562, ¶17. An abuse of

discretion “connotes more than an error of law or judgment; it implies that the

court’s attitude is unreasonable, arbitrary, or unconscionable.”      Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219. When applying the abuse of discretion

standard, a reviewing court may not simply substitute its judgment for that of the

trial court. Id.




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                       Assignments of Error Nos. I and IV

      {¶20} In her first assignment of error, Mother argues that the trial court’s

grant of custody to CPSU was contrary to the manifest weight of the evidence.

Specifically, Mother contends that CPSU’s evidence that Mother had not made

efforts towards establishing a proper living environment for K.H. was contradicted

by Mother’s testimony that she found a stable housing environment and created

support for K.H. In her fourth assignment of error, Mother argues that the trial

court’s finding of abandonment was not supported by clear and convincing

evidence. Specifically, Mother argues that R.C. 2151.414(B)(1)(b), on which the

trial court relied, only creates a presumption of abandonment, which may be

rebutted by the parent.    Mother contends that she sufficiently rebutted this

presumption by presenting evidence that she had issues with transportation and

limited resources. We disagree.

      {¶21} “Once a child has been adjudicated dependent, neglected, or abused

and temporary custody has been granted to a children services agency, the agency

may file a motion for permanent custody[.]” In re Esparza, 3d Dist. Nos. 9-06-25,

9-06-27, 2007-Ohio-113, ¶25. The trial court’s analysis consists of two prongs.

First, the trial court must determine if any conditions enumerated in R.C.

2151.414(B)(1) are present. If any of these conditions exist, the trial court must




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then move on to the second prong and determine whether permanent custody is in

the best interest of the child.

       {¶22} The first prong of analysis requires consideration of R.C.

2151.414(B)(1), which contains the pertinent conditions, and states, in part:

       [T]he 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.

       (b) The child is abandoned.

       {¶23} Here, Mother essentially argues that the trial court abused its

discretion in finding that the conditions in R.C. 2151.414(B)(1)(a) and (b) were

both present, as she argues these findings were against the manifest weight of the

evidence and unsupported by sufficient evidence.         Initially, we will discuss

Mother’s argument pertaining to the condition in R.C. 2151.414(B)(1)(a), that “the



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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.”

       {¶24} R.C. 2151.414(E) provides, in pertinent part:

       (E) In determining * * * 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 * * * 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 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;
       ***
       (10) The parent has abandoned the child.

       {¶25} Here, the trial court found that “many factors included in R.C.

2151.414(E)(1)-(16)” were present.         (Jan. 2010 Judgment Entry, p. 3).


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Specifically, the trial court made a finding that Mother failed continuously and

repeatedly to substantially remedy the problems that initially caused K.H. to be

placed outside of her home pursuant to R.C. 2151.414(E)(1), including that

Mother had a total lack of involvement with K.H. and had not maintained regular

visitation with him or even regular contact with the caseworker; that Mother had

not met any of the case plan objectives including substance abuse and mental

health treatment, parental education, and maintaining safe and stable housing; and,

that Mother had not even demonstrated minimal efforts towards accomplishing the

case plan objectives. In doing so, the trial court noted that it had considered

Mother’s lack of utilization of the social and rehabilitative services and material

resources made available to her. Additionally, the trial court found that K.H. was

abandoned pursuant to R.C. 2151.414(E)(10) because his father was unknown and

Mother had not visited him for the seven months prior to the hearing.

       {¶26} CPSU presented evidence at the hearing that Mother’s caseworker

had personally referred her for services for mental health, substance abuse

treatment, life skills, home-based therapy, parenting skills, and visitation; that,

despite these referrals, Mother never began mental health or substance abuse

treatment, the life skills program, or parenting classes; that Mother had not visited

with K.H. physically or by telephone since June 2009; that Mother’s caseworker

referred her to a transitional facility for job training and temporary housing, but



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she did not follow through; that Mother failed to regularly inform her caseworker

of her changes in address, even upon his request; and, that Mother did not

complete any of the case plan objectives.

      {¶27} Mother did present evidence that she did not visit K.H. even when

she lived in Findlay because she had “transportation issues” and ran out of CPSU-

provided bus tickets; however, she then testified on cross-examination that she did

not inform CPSU of her transportation issues or ask her caseworker for help

purchasing bus tickets. Further, testimony was heard from the caseworker that

Mother also did not visit with K.H. via telephone or make contact with him by

sending gifts. Additionally, Mother testified that she then moved to Dayton,

although, incredibly, she testified that she did not believe this would affect her

ability to visit K.H. Further, although Mother testified that the visitations were

scheduled at a time when she was unable to access transportation, she admitted

that she had not requested that CPSU change the visitations to a time when she

could secure transportation. Mother additionally testified that she had attempted

to create a safe and stable living environment by moving in with her boyfriend in

Dayton; however, she also testified that she had not contacted CPSU so that they

could evaluate the home. Finally, although Mother testified that she would love to

take parenting classes and had been “calling around” in Dayton to find classes, she

admitted that she had been calling around for three or four months, but had not



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attended any classes. Based on the preceding, we do not find that the trial court’s

findings that K.H. could not or should not be placed with Mother within a

reasonable time and that K.H. was abandoned were either against the manifest

weight of the evidence or unsupported by sufficient evidence.

         {¶28} Accordingly, we overrule Mother’s first and fourth assignments of

error.

                         Assignments of Error Nos. II and III

         {¶29} In her second assignment of error, Mother argues that the trial court

erred by failing to make a finding on the record as to K.H.’s wishes and failing to

appoint K.H. separate counsel. Specifically, Mother argues that, although K.H.

was only four years old at the time of the permanent custody hearing, the trial

court should have inquired into his maturity level or ability to express his desires

as to custody. Additionally, in her third assignment of error, Mother argues that

the trial court’s granting of custody to CPSU was not in K.H.’s best interest.

Specifically, Mother argues that placement was not in K.H.’s best interest because

the record demonstrated that the foster parents would not be able to adopt K.H.,

requiring him to eventually be moved to a different home.

         {¶30} After finding that one of the R.C. 2151.414(B)(1) conditions is

present, as the trial court did and we affirmed in our analysis of Mother’s first and

fourth assignments of error, the trial court must then move on to the second prong



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of the analysis. In the second prong, the trial court must determine by clear and

convincing evidence that a grant of permanent custody to the agency is in the

child’s best interest. In doing so, R.C. 2151.414(D)(1) directs the trial court to

consider the following non-exclusive factors:

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

       (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[.] * * *

      {¶31} This Court has previously found that clear and convincing evidence

did not support a trial court’s finding that a child was too young to express her

wishes and conclusion that permanent custody was in the child’s best interest

pursuant to R.C. 2151.414(D)(1)(b), where there was no testimony indicating what

the child’s wishes were regarding permanent custody; where the GAL report and

testimony did not reference the child’s wishes or indicate that the child lacked

maturity to indicate her wishes; where there was no indication in the record that

the trial court interviewed the child to ascertain her level of maturity; where the

child was five years old; and, where there was no evidence on the record that the


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child had developmental delays or lacked maturity to express her wishes. See In

re Lopez, 166 Ohio App.3d 688, 2006-Ohio-2251.

       {¶32} In contrast, this Court has previously found that clear and convincing

evidence supported a trial court’s finding that permanent custody was in the best

interests of the children even though the GAL failed to question the children

regarding their wishes and the trial court apparently failed to consider R.C.

2151.414(D)(1)(b), as this error was harmless in light of the circumstances that

one child was nearly three years old, and the other child was nearly six years old;

that evidence was presented that the children had possible developmental delays;

that evidence was presented that the children lacked maturity; and, that

overwhelming evidence supported the conclusion that permanent custody was in

the children’s best interests. See In re Lane, 3d Dist. Nos. 9-03-61, 9-03-62, 2004-

Ohio-2798.    Nevertheless, this Court noted that “[t]he trial court and/or the

guardian ad litem would normally be well advised to more specifically address the

wishes of the children.” Lane, 2004-Ohio-2798, at ¶46.

       {¶33} Here, Mother specifically argues that the trial court failed to make a

finding on the record as to K.H.’s wishes and/or inquire into his ability to express

his desires as to custody. However, the trial court’s judgment entry specifically

provided that it considered K.H.’s “wishes * * * by way of recommendation from

his CASA.” (Jan. 2010 Judgment Entry, p. 3). Additionally, the GAL report



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submitted to the trial court provided that “[t]his child is only four years of age. * *

* [K.H.] rarely spoke and never expressed himself during any of my visits with

him. I believe the wishes of this child would be to remain with these foster care

parents or to be placed into adoption with loving and caring adoptive parents or

adoptive parent.” (Report and Recommendations of CASA/GAL, p. 5).

           {¶34} We find that this evidence is sufficient to demonstrate that the trial

court considered K.H.’s wishes pursuant to R.C. 2151.414(D)(1)(b) and its

corresponding finding that permanent custody was in his best interest. Further, we

find that any possible error in the trial court’s failure to specifically inquire into

K.H.’s wishes and maturity was harmless. Similar to Lane, supra, the record

demonstrated K.H. was of a young age, only four years old, and had

developmental delays for which he received classes in speech, therapy,4 social

skills, and counseling. Additionally, we find this situation to be distinguishable

from Lopez, supra, where the GAL report did not reference the child’s wishes at

all; where the child was five years old; and, where there was no evidence on the

record that the child had developmental delays.

           {¶35} Next, we turn to Mother’s argument that the trial court erred in

failing to appoint counsel on behalf of K.H. pursuant to In re Williams, 101 Ohio

St.3d 398, 2004-Ohio-1500. In Williams, supra, the Supreme Court of Ohio held



4
    See Footnote 3.


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that it may be necessary for a trial court to appoint independent counsel for a

minor if his wishes contradict the recommendations of the GAL. We find that the

Williams holding is inapplicable in the case sub judice. As discussed previously,

K.H. was only four years of age, “rarely spoke,” and “never expressed himself.”

There was no indication that K.H. had wishes concerning his custody that

contradicted the recommendations of the GAL. See In re C.E., 3d Dist. No. 5-09-

02, 5-09-03, 2009-Ohio-6027, ¶21. Consequently, we do not find that the trial

court erred in failing to appoint counsel on K.H.’s behalf.

       {¶36} Accordingly, we overrule Mother’s second assignment of error.

       {¶37} Next, we turn to Mother’s third assignment of error, which argues

that the trial court’s granting of custody to CPSU was not in K.H.’s best interest.

Specifically, Mother argues that placement was not in K.H.’s best interest because

the record demonstrated that the foster parents were not willing to adopt K.H.,

requiring him to eventually be moved to a different home.

       {¶38} Here, the trial court’s judgment entry specifically reflects that it

considered all of the relevant factors in R.C. 2151.414(D)(1) through (5) and

2151.414(E)(7) to (11) in determining that granting permanent custody to CPSU

was in K.H.’s best interest. The trial court further specified that it had considered

K.H.’s lack of relationship with his parents and relatives; K.H.’s need for legally

secure permanent placement; the unlikelihood of this type of placement without



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granting permanent custody to CPSU; K.H.’s custodial history; and, K.H.’s desires

as expressed through his GAL. Although Olthouse testified that K.H.’s current

foster family would not adopt him, he nevertheless testified that K.H. had a high

probability of being adopted. We cannot find that the likelihood that K.H. would

be moved into another foster home before being adopted is a factor demonstrating

that permanent custody was not in his best interest, particularly given his lack of

relationship with Mother and his custodial history.

       {¶39} Accordingly, we overrule Mother’s third assignment of error.

                            Assignment of Error No. V

       {¶40} In her fifth assignment of error, Mother contends that CPSU failed in

its duty to provide reasonable case planning and diligent efforts to reunify her with

K.H. Specifically, Mother argues that she was not given ample opportunity to

complete the case plan; that less than eight months passed from the time CPSU

obtained temporary custody until CPSU filed for permanent custody; that CPSU

did nothing to address her transportation issues; that CPSU did not provide Mother

with information about counseling and other services outside of the Hancock

County area; that CPSU was not diligent in attempting to identify and locate

K.H.’s biological father; and, that CPSU failed to conduct appropriate visits of the

home to measure Mother’s progress in creating a safe environment.




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       {¶41} “R.C. 2151.419 imposes a duty on the part of children services

agencies to make reasonable efforts to reunite parents with their children where

the agency has removed the children from the home.” In re Sorg, 3d Dist. No. 5-

02-03, 2002-Ohio-2725, ¶13, citing In re Brown (1994), 98 Ohio App.3d 337, 344.

“The agency bears the burden of showing that it made such reasonable efforts.”

Sorg, 2002-Ohio-2725, at ¶13, citing R.C. 2151.419(A)(1).

       {¶42} Initially, Mother argues that she was not given enough time to

complete the case plan, as only eight months passed between K.H.’s removal from

the home and CPSU’s filing for permanent custody. However, Mother’s argument

ignores the fact that testimony at the hearing established she had not made

significant progress in any case plan objective, and had not made any effort

towards accomplishing the majority of the case plan objectives. Further, Olthouse,

the parties’ caseworker, testified that he did not believe a six-month extension of

temporary custody would change Mother’s compliance with the case plan.

Finally, we note that Olthouse stressed K.H.’s need for permanency and

emphasize again that, despite the natural rights of a parent, the ultimate welfare of

the child is the controlling principle in a permanent custody case.                See

Cunningham, 59 Ohio St.2d at 106.

       {¶43} Next, Mother argues that CPSU did nothing to address her

transportation issues, insinuating that this was the cause of her failure to visit with



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K.H. However, Mother admitted that Olthouse provided her with ten bus tickets,

and that, when she ran out, she did not inform CPSU of her transportation issues

or request that Olthouse provide her with more tickets. Additionally, Mother

testified that, after moving to Dayton, her access to transportation was unavailable

during the times that visitation was scheduled with K.H. in Findlay; however, she

then admitted that she did not request CPSU to schedule the visitation at a time

when she would have transportation. Finally, Olthouse testified that Mother had

not only failed to visit K.H. in person since June 12, 2009, but that she had also

failed to visit with him via telephone or send him gifts since that time.

       {¶44} Next, Mother contends that CPSU was not diligent in attempting to

identify and locate K.H.’s biological father.          Initially, we note that it is

questionable whether Mother has standing to make this argument on the biological

father’s behalf, as it pertains to the rights of a non-party. See In re M.K., 10th Dist.

No. 09AP-1141, 09AP-1142, 2010-Ohio-2194, ¶19, citing In re A.C., 10th dist. No.

03AP-348, 2003-Ohio-5344, ¶7. See, also, In re T.R., 5th Dist. No. 2009 CA

00235, 2010-Ohio-429, ¶¶27-28. Nevertheless, we find that, even if Mother had

standing to raise this argument, testimony was heard that two men identified by

Mother as possible fathers were given paternity tests; that Mother did not identify

to CPSU any other men as K.H.’s possible father; that CPSU consulted the

putative father registry; and, that K.H.’s unknown father was notified of the



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Case No. 5-10-06


proceedings via publication. Mother does not identify any other possible methods

by which the trial court could have identified and located K.H.’s father, nor are

any apparent to this Court.

       {¶45} Finally, Mother argues that CPSU did not provide her with

information about counseling and other services outside of the Hancock County

area and failed to conduct home visits of her boyfriend’s apartment to determine

whether she had created an appropriate environment for K.H. However, Olthouse

testified that, due to Mother’s transient lifestyle, he requested that she inform him

of any changes of address, which she did not do, and he was uncertain of where

she was living from April through July 2009; that, in August 2009, he learned

through the grandmother that Mother was living in Dayton, Ohio; that he left, at a

minimum, monthly voice messages at the phone number provided to him by the

grandmother; and, that Mother did not return his phone calls.          Additionally,

Mother admitted that she did not call CPSU to see if they could assist her with

financing classes and services in Dayton; that she had not asked them to evaluate

her boyfriend’s apartment in Dayton to see if it was appropriate for K.H.; and, that

she did not even inform CPSU of her Dayton address until after they filed for

permanent custody.

       {¶46} In light of the preceding, we do not find that CPSU failed in its duty

to provide reasonable case planning and diligent efforts to reunify her with K.H.



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       {¶47} Accordingly, we overrule Mother’s fifth assignment of error.

       {¶48} Having found no error prejudicial to the appellant herein, in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and SHAW, J., concur.

/jlr




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