[Cite as In re J.L., 2018-Ohio-2073.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                        TRUMBULL COUNTY, OHIO


IN THE MATTER OF:                                  :     OPINION
J.L., L.L., AND C.L., DEPENDENT
CHILDREN.                                          :
                                                         CASE NO. 2018-T-0015
                                                   :



Appeal from the Trumbull County Court of Common Pleas, Juvenile Division, Case No.
2015 CH 00017.

Judgment: Affirmed.


David L. Engler, Engler Law Firm, 181 Elm Road, N.E., Warren, OH 44483 (For
Appellant, Rebecca Horton).

Tammy Richardson, Trumbull County Children Services Board, 2282 Reeves Road,
N.E., Warren, OH 44483 (For Appellee).

Michael R. Babyak, 51 East Park Avenue, Niles, OH 44446 (Guardian ad litem).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Rebecca Horton (“mother”), appeals the judgment of the

Trumbull County Court of Common Pleas, Juvenile Division, granting the motion of

appellee, Trumbull County Children Services Board (“the agency”), for permanent

custody. At issue is whether the judgment was against the manifest weight of the

evidence. For the reasons that follow, we affirm.

        {¶2}     On May 6, 2015, Juv.R. 6 was exercised, placing mother’s children, J.L.,

age 12; L.L., age 10; and C.L., age nine, into foster care.
       {¶3}     On May 7, 2015, the agency filed a dependency complaint and a motion

for ex parte temporary custody of the children. The ex parte motion was granted the

same day.

       {¶4}     The children were adjudicated dependent and, by court order, placed into

the agency’s temporary custody on June 11, 2015. On April 28, 2016, the court granted

a six-month extension of temporary custody to the agency. On October 5, 2016, the

court granted a second six-month extension of temporary custody to the agency.

       {¶5}     On October 21, 2016, the agency filed a motion for permanent custody of

the children.    No other motions for custody were filed on behalf of the parties or

relatives.

       {¶6}     The children’s father signed a voluntary permanent surrender of parental

rights to the agency.

       {¶7}     The permanent custody trial was held by the magistrate on nine days

between February 8, 2017 and May 10, 2017.

       {¶8}     Daphne Markakis, an agency caseworker, testified that in the spring of

2015, the agency received three referrals regarding the children, who were living with

mother at the time. The first referral came in shortly before May 1, 2015, and involved

concerns regarding mother’s alcohol abuse and her mental health issues.

       {¶9}     The second referral was received on May 1, 2015, alleging that mother

was highly intoxicated at L.L.’s school talent show. The referral also involved concerns

that mother was making the children walk to West Virginia.




                                            2
       {¶10} The third referral was received one week after the second, and alleged

mother tried to drown C.L., the youngest child, in the bathtub and that mother was

getting rid of all their possessions.

       {¶11} After a determination was made that the agency had enough evidence to

take custody of the children, Ms. Markakis removed them from school and they went

with her willingly. They said they were afraid to go home because they were concerned

mother would make them walk to West Virginia with her and they did not want to go.

       {¶12} After the children were removed, Ms. Markakis went to mother’s home.

Ms. Markakis said the home was so cluttered, she could barely walk through it. There

were dirty clothes, blankets, bugs, and flies “all over the place.” Stuffed boxes were on

the curb along with the family’s furniture and mattresses. The children’s bedrooms had

no furniture in them and the children were sleeping at night in a tent in the backyard.

       {¶13} Ms. Markakis attempted to talk to mother, but she was so irate, Ms.

Markakis could not carry on a civil conversation with her.

       {¶14} At the agency, Ms. Markakis talked to the children. They said mother was

throwing out their things to prepare for their walk to West Virginia. The children were

frightened and confused about mother’s decision to do this.

       {¶15} L.L. told Ms. Markakis about the recent talent show at school. She said

she knew mother was drunk at the time because she was screaming and clapping

loudly, although no one else was.       L.L. said the principal tried to talk to mother and

eventually asked her to leave. Mother became angry and dragged L.L. out of the school

before her performance.




                                             3
      {¶16} The children told Ms. Markakis about the bathtub incident in which mother

tried to drown C.L. in early May 2015. C.L., then nine years old, said that mother was

yelling at him for something he did that day. While he was in the bathtub, she was

pushing his head under the water and he was fighting with her to try to get her to stop.

      {¶17} J.L., then age 12, and J.L., age 10, were not in the bathroom at that time,

but they said they heard C.L. screaming and crying, but were too afraid to intervene.

      {¶18} The agency’s caseworker, Jared Wert, testified that, as of the date of his

testimony, the children had been in foster care for nearly two years.        He said the

children were also removed from mother twice in Mahoning County in 2010. They were

first removed in September 2010 for a short time due to concerns that the children’s

parents had engaged in domestic violence and, again, in October 2010 for a year and a

half due to concerns that mother was “out of control” and “under the influence” of

alcohol and was “a danger to the children.”

      {¶19} Mr. Wert testified that under the original case plan, which was filed in this

case on June 2, 2015, mother was required to complete a drug and alcohol

assessment; to submit to random urine screens within two hours of a request by a

caseworker; to complete a psychological evaluation; and to maintain employment,

independent housing, and financial stability.

      {¶20} By February 2016, mother secured a part-time job at a scrap-hauling

company, which she later lost; completed a psychological evaluation; and completed

drug and alcohol treatment at Glenbeigh in December 2015.

      {¶21} However, Mr. Wert and the children still had concerns about mother’s

sobriety and mental health. After she completed treatment at Glenbeigh, she did not




                                              4
comply with numerous attempts to obtain random urine screens at her home, in

violation of her case plan.

       {¶22} Mr. Wert said he has seen mother talking to herself in a bizarre manner

during visitation at the agency. On one occasion, she was sitting by herself, saying

“Leave me alone. Get out of here.” On another occasion, while mother was talking to

someone who was not there, she stated “big fat pig.” Mr. Wert said that C.L. told him he

is afraid to return home to mother because she talks to invisible people and to shadows.

The two other children also said they saw mother talking to herself and this behavior

frightens them.

       {¶23} Due to Mr. Wert’s ongoing concerns about mother’s mental health, he

amended the case plan in April 2016 to require her to participate in a specialized

parenting assessment at Northeast Ohio Behavioral Health.

       {¶24} That assessment was conducted by Dr. Aimee Thomas, Ph.D., a licensed

psychologist and professional clinical counselor. Dr. Thomas testified that mother told

her the children were removed because they said she tried to drown C.L. and because,

as she admitted, she was drinking alcohol at that time and, in fact, was drinking the day

before the agency removed the children. She said she was drinking three 24-ounce

beers several times a week.

       {¶25} Dr. Thomas said she was concerned about the previous removal of the

children due to mother’s drinking when she lived in Mahoning County because she

failed to disclose it to her and, further, because it shows mother does not learn from her

past mistakes. Dr. Thomas also said it shows a lack of commitment to addressing her

alcohol abuse and mental health issues. Although mother acknowledged she fits the




                                            5
criteria for being an alcoholic and should never drink, she was not willing to admit she is

alcohol-dependent or that she needs to maintain sobriety.

       {¶26} When asked when she last drank alcohol, mother vaguely said “a long

time ago” in 2015. However, this was contradicted by the fact that she tested positive

for alcohol on May 17, 2016, just ten days after mother completed Dr. Thomas’

evaluation. Dr. Thomas said she was concerned that mother was still drinking after her

treatment at Glenbeigh in December 2015. Further, between January and April 2017,

she tested positive for alcohol and refused to give specimens three times. Dr. Thomas

said that, although mother completed her treatment at Glenbeigh, she was not

committed to attending 12-step meetings; continued to miss urine screens; and gave

many adulterated screens.       Dr. Thomas testified that, despite having experienced

serious negative consequences as a result of her drinking (repeatedly losing custody of

her children and subjecting them to foster care), mother continued drinking even while

her case plan was open, which shows she does not accept that her disease is

“significant.”   Dr. Thomas said if this is not remedied and reunification is granted,

mother’s alcohol abuse will likely continue and the agency will have to intervene and

remove the children again.

       {¶27} Dr. Thomas testified that, in addition to being alcohol-dependent, mother

has serious mental health issues. The doctor said that, based on her observations,

mother’s defensiveness, her psychological test results, reports about mother’s psychotic

behavior, and her previous diagnosis of having bipolar disorder, Dr. Thomas diagnosed

her as having bipolar disorder with psychosis. Individuals with bipolar disorder cycle

into high (manic) or low (depressed) states. Further, people with bipolar disorder with




                                            6
psychosis may function well when they are not cycling, but often experience psychosis

when they are in a manic or depressed state. While appellant insisted she is not

bipolar, witnesses have seen her engage in behaviors that Dr. Thomas characterized as

symptoms of the manic phase of this disorder.          These include mother’s bizarre

statements to people who are not present, as reported by the children and Mr. Wert. In

addition, mother was seen picking up trash in the road and around Dr. Thomas’ office.

The doctor was concerned that mother repeatedly said she loves picking up garbage.

Dr. Thomas said this conduct suggests psychosis; however, when she recommended

counseling to mother, she became defensive and said she did not want it.

       {¶28} Dr. Thomas said that mother’s bipolar disorder is chronic and medically-

based and, left untreated, may cause mother to self-medicate with alcohol when she is

depressed, resulting in other impulsive behaviors.     Dr. Thomas said mother needs

treatment for both her alcohol dependency and her mental health issues.

       {¶29} Dr. Thomas expressed concern about the statement made by C.L.,

mother’s youngest child, that he is afraid to go to school or to a friend’s house because

he is worried that his mother will drink while he is gone. Dr. Thomas said that when a

parent is alcohol-dependent, it is not uncommon for the child to be so preoccupied with

worry about the parent’s drinking that their roles become reversed and the child cannot

fully focus on school or himself, which can impact the child’s self-esteem and peer

relationships.

       {¶30} Dr. Thomas issued her report and recommendations on June 24, 2016.

She recommended that mother participate in mental health treatment and a psychiatric

evaluation and that she identify an AA sponsor; attend two 12-step meetings each




                                           7
week; and maintain her sobriety.     Dr. Thomas also recommended that mother not

regain custody unless and until she addresses her alcohol and mental health issues for

nine months. Mr. Wert amended mother’s case plan to include these recommendations.

      {¶31} However, Mr. Wert said he was never able to confirm that mother obtained

a sponsor or that she was attending AA meetings. Further, he said she did not maintain

nine months of sobriety because, since January 2017, she refused three requests for

urine screens, including a request on April 4, 2017, two months after the trial began.

Further, mother tested positive for alcohol on January 3, 2017.

      {¶32} Mr. Wert said that when the case was first opened in May 2015, mother’s

alcohol use and mental health were the two key issues that led to the children being

taken from the home. He said he currently has safety concerns for the children due to

mother’s ongoing alcohol use and mental health issues.

      {¶33} Mr. Wert said that mother does not demonstrate any insight into the issues

that led to the children being removed. By her own admission, she will not stop drinking

alcohol. She also denies having any mental health issues and denies that she tried to

drown C.L. She told Mr. Wert she was just washing his hair and he started screaming

and crying because he did not want to be in the tub. Mr. Wert said that since the

children continue to express fear over the bathtub incident and mother does not

acknowledge it, he has reservations about reunification.

      {¶34} Mr. Wert said that within the last few months, the children have said they

do not want to go home. C.L. said he is afraid to go home because he is worried

mother will continue drinking and continue talking to people who are not there.




                                           8
       {¶35} Mr. Wert said he recommends that the agency be granted permanent

custody because this is in the children’s best interests.

       {¶36} Stephen Brown, the children’s counselor between April and October 2016,

testified that all three children were diagnosed with post-traumatic stress disorder and

that the traumatic events giving rise to this disorder were mother’s attempt to drown C.L.

and mother’s erratic decision to throw away all their belongings and walk to West

Virginia.

       {¶37} All three children expressed fear about going back with mother due to her

drinking and her talking to people who are not there. C.L. said he is afraid mother

would not give him his ADHD medication if she is drinking. He also said he is afraid that

he would start to see invisible people like mother does. C.L. said he worries all the time

that if he goes back home, mother will be drinking. C.L. said he was frightened by the

drowning incident to the point where he had recurrent nightmares about it.

       {¶38} Mr. Brown testified he has concerns about the children returning to

mother’s home and said that if the children were reunited with mother and had to be

removed from her again, this would likely re-traumatize them.

       {¶39} Angela Cochran, a collection specialist at Braking Point Recovery Center,

testified that Braking Point was hired by the agency to conduct drug screening for

mother. Between January 2016 and January 2017, random (unannounced) screens

were to be taken from mother at her home twice a month per the case plan. The plan

required that mother make herself available to screen within two hours of the request

and provided that her failure to do so within two hours would be considered a positive

screen. When Ms. Cochran would go to mother’s home to obtain a screen, i.e., a urine




                                             9
specimen, and no one was home, she would leave a card advising mother of the date

and time she arrived and the number to call back.

       {¶40} Ms. Cochran said that on many occasions, she arrived for a screening at

mother’s home, no one answered, and she left her card, but mother never made a

return call. On one occasion, when Ms. Cochran arrived for a screening, she knocked

on the door and saw mother looking out the window, but she refused to answer. She

left her card, but mother did not call back. In February 2016, Ms. Cochran told mother

that she had gone to her home several times for random screenings and had left cards,

but had not received any return calls. She told mother that even if she received the

card outside the two-hour limit, she is still required to call her in order to be compliant

with her case plan, but mother still did not make any return calls after that.

       {¶41} There were also many occasions when mother was home, but said she

could not produce a specimen even after Ms. Cochran waited for 30 minutes.

       {¶42} There were also occasions when mother refused outright to give

specimens or gave screens that were found by the lab to be adulterated with a

supplement called creatine, which is used to mask a diluted urine screen and is sold on

the internet. Mother admitted to Ms. Cochran that she was taking this supplement.

Between January 2016 and January 2017, the following screening results occurred:

       {¶43} In 2016, on 21 occasions, Ms. Cochran went to mother’s house to take a

random screen, knocked on the door, no one came to the door, Ms. Cochran left her

card, and mother made no return call.        Further, on six occasions, mother told Ms.

Cochran that she was unable to provide a specimen after 30 minutes. In addition, on 20

occasions, mother gave Ms. Cochran specimens that were found by the lab to be




                                             10
diluted. Further, on four occasions, mother refused to give specimens. And, on May 17,

2016, mother’s urine tested positive for the presence of alcohol.

       {¶44} In January 2017, on one occasion, mother was not home when Ms.

Cochran arrived and made no return call. On two occasions, the specimens were found

to be diluted.   Further, mother refused to give specimens three times.         And, one

specimen mother provided tested positive for the presence of alcohol.

       {¶45} Ms. Cochran testified that some months earlier, mother told her that as

soon as this case is over, she intends to drink alcohol.

       {¶46} Mother’s mental health records from Turning Point Counseling Center, an

outpatient mental health center, outline mental health and substance abuse concerns

regarding mother from 2001 to 2014. During this period, Turning Point’s staff made

several mental health diagnoses for her, including schizoaffective disorder, bipolar

disorder, alcohol dependency, mood disorder, and polysubstance abuse.                 Her

symptoms included psychosis, erratic behavior, mood swings, irrational and obsessive

thought, delusions, hearing voices, and visual hallucinations.

       {¶47} As an example of the erratic, impulsive behaviors to which Dr. Thomas

testified mother is prone, the agency presented the testimony of William Nicholas,

owner and funeral director of Nicholas Funeral Home in Niles.

       {¶48} Mr. Nicholas testified that mother attended calling hours for a deceased

relative on February 11, 2017 (shortly after the trial in this matter began). Mr. Nicholas

was acting as a greeter at the door when he saw mother arrive. She started talking to

two men who were already there. She frequently left the building with them and, finally,

they went for a long walk. When they returned to the parking lot, they were loud and




                                            11
boisterous and laughing so loudly they could be heard inside the funeral home. Mr.

Nicholas said mother’s conduct was not in keeping with the otherwise reverent tone of

the funeral and continued when she entered the building.

       {¶49} The funeral started at 6:00 p.m. and mother left her seat and went into the

bathroom. Once inside, she started slamming the door and yelling obscenities.      At the

request of the deceased’s mother, Mr. Nicholas removed mother from the building.

       {¶50} Michael Babyak, the children’s guardian ad litem, testified the two principal

reasons the children do not want to return to mother are her drinking and her talking to

people who are not there. Mr. Babyak said that mother has not been consistent with

her sobriety. In fact, her alcohol dependency has been consistent throughout her past

and present. There have been many missed, adulterated, and refused screens. Thus,

she has not shown that reunification should occur, and he would be concerned for the

children’s safety if they should be returned to her.

       {¶51} Mr. Babyak said the children have told him that when mother talks to

imaginary people, she often gets angry and “cusses” at these “people.” The children

said that when she talks to herself, they are uncomfortable and afraid of her.

       {¶52} Mr. Babyak said he observed a video of a visit with mother and the

children at the agency during which she told them that after the case is closed, she was

going to continue drinking because she is an adult and it’s legal. J.L. responded by

saying, “well, it is illegal if your kids are in foster care.”

       {¶53} Shortly after the children came into care, they told the guardian the reason

they were here is because of mother’s drinking. They said they often have to clean up

after her because she passes out in the middle of the day.




                                                 12
          {¶54} With respect to the bathtub incident, C.L. told the guardian that he

believes mother was trying to harm him. C.L. said he knew mother was drinking during

this incident because she was holding a beer bottle at the time. The other children also

believed she was drinking during this incident.         Mother told the guardian that the

children are lying, but the guardian said C.L. was visibly scared and shook up when

discussing this incident.

          {¶55} The children have been living with the same foster family, the Floyds, for

two years. When Mr. Babyak asked the children what they want to happen, they said

they love mother and want to go back with her, but if she is still drinking, they do not

want to return. When asked about adoption, they said if it is by the Floyds, they would

be okay with it. The children get good grades in school. They love the Floyds and their

children. They get along well in their foster home and are bonded to the Floyds.

          {¶56} Mr. Babyak said that, while mother accomplished some of her case plan

goals, her mental health and alcohol issues remain.             He said the main goal is

maintaining her sobriety and she has not done that, as evidenced by her erratic urine

screens. He said these issues are significant enough to terminate mother’s parental

rights.

          {¶57} In view of the foregoing, Mr. Babyak recommended that permanent

custody be given to the agency.

          {¶58} Significantly, mother did not testify and, thus, did not dispute the agency’s

evidence that she is still alcohol-dependent and has not resolved her mental health

issues.




                                              13
      {¶59} After a nine-day trial, on May 26, 2017, the magistrate issued a 12-page,

single-spaced, highly-detailed decision granting permanent custody of the children to

the agency. Mother filed objections. The court overruled the objections and entered

judgment approving the magistrate’s decision. Mother appeals that judgment, asserting

two assignments of error. For her first, she alleges:

      {¶60} “The trial court’s decision was against the manifest weight of the

evidence.”

      {¶61} “In cases involving the termination of parental rights, an appellate court

applies the civil manifest weight of the evidence standard of review.” In re A.L.A., 11th

Dist. Lake Nos. 2011-L-020 and 2011-L-021, 2011-Ohio-3124, ¶91. “According to this

standard, ‘“[j]udgments supported by some competent, credible evidence going to all

the essential elements of the case will not be reversed by a reviewing court as being

against the manifest weight of the evidence.”’” Id., quoting In re D.H., C.H., and R.H.,

11th Dist. Geauga No. 2009-G-2882, 2009-Ohio-2798, ¶21, quoting C.E. Morris Co. v.

Foley Construction Co., 54 Ohio St.2d 279 (1978), syllabus. Witness credibility rests

solely with the finder of fact. River Oaks Homes, Inc. v. Twin Vinyl, Inc., 11th Dist. Lake

No. 2007-L-117, 2008-Ohio-4301, ¶27.

      {¶62} R.C. 2151.414(B) sets forth a two-prong test for the trial court to grant

permanent custody.      Under R.C. 2151.414(B)(1), the court may grant permanent

custody if the court finds, by clear and convincing evidence, that (1) at least one of four

factors in R.C. 2151.414(B)(1)(a)-(d) applies and that (2) it is in the children’s best

interests to grant permanent custody to the agency.




                                            14
       {¶63} Here, the trial court found that the factor in R.C. 2151.414(B)(1)(d) applies,

namely, that the children have been in the temporary custody of the agency for 12 or

more months of a consecutive 22-month period. Thus, under R.C. 2151.414(B)(1), the

court would then be required to weigh the best interest factors in R.C. 2151.414(D)(1).

       {¶64} In 2009, the Legislature amended R.C. 2151.414(D). Prior to that time, the

only best interest test was the one set forth in the current version of R.C.

2151.414(D)(1). The amendment of the statute added another best interest test in R.C.

2151.414(D)(2). In re H.C., 7th Dist. Harrison No. 13 HA 5, 2013-Ohio-5871, ¶24.

       {¶65} Under R.C. 2151.414(D)(2), if all four factors listed therein apply,

permanent custody is in the best interests of the child and the court is required to grant

permanent custody to the agency. H.C. at ¶31-32. These factors are that: (a) one of

the factors in R.C. 2151.414(E) applies and the child cannot be placed with a parent

within a reasonable time; (b) the child has been in the agency’s custody for two years or

longer; (c) the child does not meet the requirements for a planned permanent living

arrangement; and (d) no relative has filed a motion for custody. Here, the trial court

found that all four factors apply.

       {¶66} Mother     does    not   dispute    that   three   of   the   factors   in   R.C.

2151.414(D)(2)(b)-(d) apply, but argues that the factor in (a) does not apply because,

per that factor, the court was required, but failed, to find that any of the factors in R.C.

2151.414(E) applies.

       {¶67} However, to the contrary, the trial court found that R.C. 2151.414(E)(1)

applies. That section provides:

       {¶68} Following the placement of the child outside the child’s home and
             notwithstanding reasonable case planning and diligent efforts by



                                            15
               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.

        {¶69} Under this factor, the trial court found:

        {¶70} Subsection (E)(1) applies to this case as the agency has offered a
              plethora of services and means of measuring progress,
              demonstrating the goal, and showing maintenance of success. The
              biggest issue is the use of alcohol. Services to address this issue
              were counseling, random drug screens and AA attendance. But
              mother did not cooperate. It cannot be said she used the services
              to achieve, demonstrate and maintain alcohol abstinence especially
              since she openly says she will use alcohol * * *; she does not
              submit to random screens at her home; and, she tests positive for
              alcohol and submits adulterated urine screens.

        {¶71} Since the trial court found that each of the four factors in R.C.

2151.414(D)(2) applies, the court was required to find that permanent custody is in the

best interests of the children and to grant permanent custody. Although the trial court

correctly stated that a trial court is not required to apply both best-interest tests in R.C.

2151.414(D)(1) and (D)(2), H.C., supra, the court also made the findings required under

R.C. 2151.414(D)(1).

        {¶72} Under (a), the interaction and interrelationships of the children with mother

and their foster parents, the court found that the children love their mother and are

protective of her, but they are afraid of her when she is drinking and she is not alcohol-

free. The children also love their foster parents and their children and are bonded with

them.




                                             16
       {¶73} As for the children’s wishes under (b), they have consistently said that

they would prefer to return to mother if she is not drinking, but that if she continues

drinking, they would prefer to be adopted by the Floyds.

       {¶74} As for the children’s custodial history under (c), the court found, and

mother does not dispute, that they were in the agency’s custody for more than 12

months of a consecutive 22-month period.

       {¶75} As for the children’s need for a legally secure permanent placement under

(d), the court found that a permanent placement requires mother to achieve and

maintain an alcohol-free lifestyle and she has not achieved this goal, despite

opportunities while the children were in foster care. The children suffer from PTSD, and

returning them to mother will not alleviate their fear of her drinking.

       {¶76} As to whether any of the factors in R.C. 2151.141(E)(7) to (11) apply

under (e), the court found the factor in (E)(9) applied. This subsection provides:

       {¶77} The parent has placed the child at substantial risk of harm two or
             more times due to alcohol * * * abuse and has rejected treatment
             two or more times or refused to participate in further treatment two
             or more times after a case plan issued pursuant to section
             2151.412 of the Revised Code requiring treatment of the parent
             was journalized * * *.

       {¶78} Under this factor, the trial court found:

       {¶79} The children were adjudicated twice (in Mahoning and Trumbull
             Counties), placed into foster care because of the risk of harm, and
             mother was directed to be alcohol free. She avoids services to
             detect alcohol, she adulterates her body with creatine to mask the
             alcohol in her urine, she vows to drink alcohol, and she says she is
             using because it is legal. She says she attends AA, but gives no
             information as to the name of her sponsor, and she fails to provide
             attendance records.




                                             17
       {¶80} Contrary to mother’s argument, the trial court did not award custody to the

agency simply because mother refused to say she is an alcoholic or refused to pledge

she would never drink again. Rather, she lost her children because she failed to meet

her case plan goals of achieving and maintaining sobriety and addressing her mental

health issues. As for the sobriety goal, mother’s urine screening and vow to continue

drinking once this case is over demonstrated she is not committed to maintaining

sobriety.   As for her mental health goal, mother did not begin her mental health

counseling until July 2016, 14 months after the children were removed from her, and

mother continued to exhibit her “manic” behavior, as evidenced by her talking to

invisible people and her bizarre behaviors in public (e.g., at L.L.’s talent show and the

funeral).

       {¶81} Mother’s argument that her drinking has not caused the children any harm

shows a lack of insight into the effect her drinking and mental health issues have had on

them. Mother’s drinking was a factor in (1) her attempting to drown C.L. in the bathtub

and (2) the removal of her children by Children Services in Mahoning and Trumbull

Counties and their placement in foster homes for a total of four and one-half years.

Further, mother’s mental health was a factor in: (1) her decision to sell all their

possessions and have the children walk with her to West Virginia; (2) her repeated

talking, arguing, and swearing at invisible people; and (3) her dragging L.L. out of the

school auditorium after the principal told mother to leave due to her unruly behavior.

These behaviors caused the children great anxiety, fear, psychological harm, and, as to

C.L., recurrent nightmares from the drowning incident, and, as to L.L., shame and

embarrassment from the talent show incident. In any event, the undisputed fact that the




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children suffer from post-traumatic stress disorder due to mother’s behaviors defeats

her argument.

      {¶82} Next, mother argues that, in granting permanent custody to the agency,

the court relied on stale evidence of events that occurred prior to the children being

placed in custody in May 2015.       However, this argument ignores the evidence of

mother’s drinking throughout 2016 and up to the trial, her refusal to give a urine screen

as late as April 2017 (two months after the trial began), and her repeated vow to

continue drinking once this case is over.

      {¶83} Mother argues that because she accomplished some of her case plan

goals, the court’s judgment was against the manifest weight of the evidence. However,

in granting permanent custody, the trial court obviously believed the witnesses who

testified that mother failed to achieve her two most important goals - sobriety and

mental health. Significantly, mother does not argue on appeal, let alone point to any

evidence, that she achieved these goals.

      {¶84} We therefore hold the trial court’s judgment was not against the manifest

weight of the evidence.

      {¶85} For mother’s second and last assigned error, she contends:

      {¶86} “The appellant’s right to due process was violated by the trial court,

allowing the agency to draft the decision approving termination of parental rights on

their own letterhead without consent of any of the parties or notice as to who was

drafting the magistrate’s decision, which was the court’s decision without any changes

whatsoever.”




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       {¶87} Mother argues the agency prepared the magistrate’s decision, put it on its

letterhead, and sent it to the magistrate, who then adopted it without asking mother if

she objected to it, thus depriving her of her right to participate in the decision. Mother

does not cite any evidence in the record to support this argument, in violation of App.R.

16(A)(7), and for this reason alone, the assigned error lacks merit.

       {¶88} Further, since this assignment of error alleges a defect in the magistrate’s

decision, this issue could have, and thus, pursuant to Juv.R. 40(D)(3)(b)(iv), was

required to be, raised in an objection to the magistrate’s decision. Since mother failed

to do so, it is waived on appeal. Id.

       {¶89} For the reasons stated in this opinion, the assignments of error lack merit

and are overruled. It is the order and judgment of this court that the judgment of the

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



TIMOTHY P. CANNON, J., concurs,

COLLEEN MARY O’TOOLE, J., dissents.




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