[Cite as In re E.W., 2018-Ohio-3992.]



                                        IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           FAYETTE COUNTY




 IN THE MATTER OF:                                 :      CASE NO. CA2018-06-010

                          E.W.                     :              OPINION
                                                                   10/1/2018
                                                   :

                                                   :



             APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
                              JUVENILE DIVISION
                            Case No. AND20160054



Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, 110 East Court
Street, Washington C.H., Ohio 43160, for appellee

Melissa S. Upthegrove, 254 East Court Street, Washington C.H., Ohio 43160, for appellant,
mother



        M. POWELL, J.

        {¶ 1} Appellant ("Mother"), biological mother of the minor child E.W., appeals the

decision of the Fayette County Common Pleas Court, Juvenile Division, which granted

permanent custody of E.W. to Fayette County Department of Job & Family Services,

Children Services ("JFS" or "the agency"). For the reasons described below this court

affirms the juvenile court's decision.

        {¶ 2} In February 2016, the agency filed a complaint alleging that E.W., age two,

was a neglected and dependent child. The complaint arose after police located E.W.'s older
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sibling unsupervised and several blocks from home. The complaint alleged that Mother,

who had a prior history with children services, made no attempt to locate the missing sibling.

The sibling claimed that Mother had physically abused her. E.W., who was with Mother,

was found to be "filthy" by an agency caseworker. Police charged Mother with endangering

children. The agency requested temporary custody, which the court granted the same day.1

        {¶ 3} The agency and Mother entered into a case plan with the goal of reunification.

Mother was required to take parenting classes, complete a mental health assessment, and

follow all recommendations.2

        {¶ 4} Mother later stipulated that E.W. was dependent and the agency dismissed

the neglect allegation.        The court found E.W. dependent and ordered that temporary

custody remain with the agency. Mother was allowed weekly two-hour visits with E.W. at a

visitation center.

        {¶ 5} Mother completed parenting classes.                    However, Mother made minimal

progress on all other aspects of the case plan for the next year and one-half. Mother began

relationships with several men who had criminal histories or drug abuse issues, some of

whom may have resided in the home or been allowed in the home. In May 2017, Mother's

caseworker was not able to visit the home as Mother would not answer the door.

        {¶ 6} The agency began to suspect that Mother was using illegal narcotics. The

agency attempted several times to obtain a urine sample from Mother for a drug screen.

Mother told the caseworker she could not provide a urine sample because of a medical

condition and that she urinated only once a day, and only at night.


1. E.W.'s siblings were also removed and eventually placed in the legal custody of their father, who is not
E.W.'s father.

2. E.W.'s biological father, who lived at a separate residence, also entered into a case plan for reunification.
The father had two visits with the child then ceased all involvement in the case. The juvenile court found that
the father abandoned the child. The father has not appealed, and Mother does not challenge the juvenile
court's finding that E.W.'s biological father abandoned her.
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      {¶ 7} Based on these concerns, in July 2017, the agency and Mother entered into

an amended case plan, which required Mother to remain drug free, to have a drug and

alcohol assessment completed, to follow its recommendations, and to take and pass all

drug screens requested by the agency.

      {¶ 8} The agency directed Mother to Fayette Recovery Center to begin these case

plan requirements. However, Mother did not go to her initially scheduled appointment.

      {¶ 9} Mother's two-hour visits with E.W. were reduced to an hour at the request of

the agency. The agency requested the change because of E.W.'s behavior during the visits

and Mother's inability to control E.W. Mother agreed to the change.

      {¶ 10} In August 2017, Mother met once with a psychologist. The psychologist

diagnosed Mother with bipolar disorder and "cannabis abuse." Recommended treatment

involved outpatient counseling and telemedicine sessions with a psychiatric nurse. Mother

attended no further counseling sessions in 2017 but completed three telemedicine sessions

in August and November of 2017 and January 2018.

      {¶ 11} In the fall of 2017, Mother began living with a new boyfriend. The agency

requested that the boyfriend submit to fingerprinting and BCI and FBI background checks.

The boyfriend did not submit to background checks at that time.

      {¶ 12} By November 2017, Mother still had not submitted to a drug screen, but

admitted daily marijuana use to her caseworker. In December 2017, Mother submitted to

her first drug screens, which were positive for THC and cocaine.

      {¶ 13} In February 2018, two years after removal, the agency moved for permanent

custody. The agency alleged that E.W.'s father abandoned her, that E.W. had been in the

agency's temporary custody for 12 of the previous 22 months, and that granting permanent

custody to the agency was in E.W.'s best interest.

      {¶ 14} Following the agency's motion, Mother attended two counseling sessions with

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her psychologist. Mother also completed four out of seven scheduled drug and alcohol

counseling sessions. Finally, Mother submitted to two drug tests, one, an announced test,

which she passed, and the other which the agency considered invalid because the urine

sample she presented to the caseworker was cold. Mother's boyfriend submitted to a

background check around the end of March 2018.

       {¶ 15} E.W.'s guardian ad litem (GAL) filed a report indicating that Mother was non-

compliant with the case plan in multiple respects and that despite numerous attempts, the

GAL had only been able to access Mother's home once during the pendency of the case.

The GAL recommended that the court grant permanent custody to the agency.

       {¶ 16} The juvenile court held the permanent custody hearing in April 2018. A

caseworker testified concerning Mother's lack of progress on the agency's case plan, the

agency's concerns with Mother's admitted drug use, Mother's failure to complete drug and

alcohol counseling, the agency's inability to test Mother for drugs on multiple occasions,

and concerns with the people Mother lived with and dated. The caseworker testified that

Mother had six child endangering convictions and did not have legal custody of her other

five children. The agency attempted to place E.W. but found no family member or person

willing to accept her.

       {¶ 17} The GAL testified that she attempted to visit Mother's home five or six times

during the two-year pendency of the case but gained entry only once, one week prior to the

permanent custody hearing. There were no serious concerns with the home. During the

GAL's unsuccessful attempts to visit the home, she observed cars parked at the home and

would knock on the door but receive no response. In one instance, she observed the front

curtain being drawn as she approached the door. The GAL knocked but received no

response. The GAL observed Mother's visits with E.W. and described them as "fine."

       {¶ 18} Mother called her psychologist, Dr. Susan Wolfe, to testify. Dr. Wolfe had

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treated Mother since she was a teenager. Dr. Wolfe met with Mother four times during the

pendency of the case. They had no meetings in 2016, met once in 2017, and met three

times in 2018. Dr. Wolfe testified that Mother seemed "more stable" in her last meeting.

      {¶ 19} Two visitation employees testified about Mother's visits with E.W. Neither had

concerns.

      {¶ 20} Mother testified that she had not smoked marijuana since January 2018. She

had not worked during the pendency of the case and received approximately $700 per

month in social security benefits. Mother claimed that she may have been in a "craft" shed

behind the house during the GAL's unsuccessful attempts to visit the home and that a dog

possibly moved the curtain.

      {¶ 21} The foster parents reported to the court that E.W. was doing well living with

them. Everyone at the foster parents' church loved E.W. and E.W. loved going to church

and singing. E.W. liked spending time with her foster grandparents, who lived behind her

foster parents. E.W. has "cousins" who come over to the house and play with her. E.W.

has children her own age with whom to play. She had some behavioral issues but was

showing improvement.

      {¶ 22} The court issued a decision finding by clear and convincing evidence that

granting permanent custody to JFS was in E.W.'s best interest. Mother appeals, raising

one assignment of error.

      {¶ 23} Assignment of Error No. 1:

      {¶ 24} THE TRIAL COURT'S DECISION AND ORDER GRANTING PERMANENT

CUSTODY OF E.W. TO FAYETTE COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES WAS CONTRARY TO THE BEST INTEREST OF THE CHILDREN, AGAINST

THE MANIFEST WEIGHT OF THE EVIDENCE, AND THERE WAS INSUFFICIENT

CLEAR AND CONVINCING EVIDENCE TO SUPPORT ITS DECISION.
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          {¶ 25} Mother argues that the court erred in granting permanent custody to JFS

because she was partially compliant with the case plan, maintained appropriate housing,

and regularly visited with E.W. and there were no serious concerns with her behavior during

visits.

          {¶ 26} 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.

Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982); R.C. 2151.414(B)(1). An

appellate court's review of a juvenile court's decision granting permanent custody is limited

to whether sufficient credible evidence exists to support the juvenile court's determination.

In re J.H., 12th Dist. Clinton Nos. CA2015-07-014 and CA2015-07-015, 2016-Ohio-640, ¶

21.

          {¶ 27} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if the court makes findings pursuant

to a two-part test. First, the court must find that the grant of permanent custody to the

agency is in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D).

Second, the court must find that any of the following apply: (1) the child is abandoned, (2)

the child is orphaned, (3) the child has been in the temporary custody of the agency for at

least 12 months of a consecutive 22-month period, (4) where the preceding three factors

do not apply, the child cannot be placed with either parent within a reasonable time or

should not be placed with either parent, or (5) the child or another child in the custody of

the parent from whose custody the child has been removed, has been adjudicated an

abused,      neglected, or     dependent     child   on   three   separate   occasions.      R.C.

2151.414(B)(1)(a)-(e). Only one of those findings must be met to satisfy the second prong

of the permanent custody test. In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-

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Ohio-2896, ¶ 22.

       {¶ 28} In this case, the juvenile court found by clear and convincing evidence that

E.W. had been in the agency's temporary custody for at least 12 months of a consecutive

22-month period. Mother does not dispute this finding. Rather, Mother disputes that

granting permanent custody of E.W. to the agency was in E.W.'s best interest.

       {¶ 29} R.C. 2151.414(D)(1) sets forth the statutory best-interest 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, 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.

       {¶ 30} In granting JFS' motion for permanent custody, the juvenile court considered

each of the best interest factors. With respect to the first statutory factor, the court found

that Mother visited with E.W. regularly and those visits went "fairly" well. There was no

evidence admitted with respect to E.W.'s interactions with any of her siblings. The foster

parents reported on E.W.'s positive interactions with family, fellow church members, and

children her age.

       {¶ 31} In considering the second factor, the court found that E.W. was too young to

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express her wishes. The GAL recommended that the court grant permanent custody to the

agency.

       {¶ 32} As to the third statutory factor, the court found that E.W. had been in the

temporary custody of the agency for two years.

       {¶ 33} With respect to the fourth statutory factor, the court found that E.W. needed a

legally secure placement, which could not be achieved without a grant of permanent

custody to the agency. In this regard, the court observed that Mother had made some

progress on the case plan but otherwise demonstrated a lack of urgency to complete the

case plan. Mother did not work on the main components of the case plan for over a year

after removal. The majority of Mother's efforts towards reunification came two years after

removal and after the agency moved for permanent custody.

       {¶ 34} The court further observed that Mother failed to comply with her requirement

to submit to drug screens and admitted continued use of marijuana.               Mother had

questionable persons residing in her home during the pendency of the case. These people

had criminal histories or issues with drug abuse. As a result, Mother's visits with E.W. could

never progress to in-home visits. The agency requested that Mother's live-in boyfriend

submit to a background check in the fall of 2017. He did not do so until a week prior to the

permanent custody hearing.

       {¶ 35} With respect to the final statutory factor, the court further found that Mother

had six convictions for endangering children.

       {¶ 36} Based on these findings, the juvenile court found by clear and convincing

evidence that a grant of permanent custody to JFS was in E.W.'s best interest. After a

thorough review of the record, we find that the juvenile court's determination regarding

E.W.'s best interest is supported by sufficient credible evidence.

       {¶ 37} The juvenile court and agency allowed Mother two years to remedy the issues

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that led to E.W.'s removal. However, Mother only began demonstrating consistent progress

on the case plan and genuine interest in reunification after the agency moved for permanent

custody. Mother's home was deemed appropriate, but she did not make it readily available

for inspection. The GAL first gained access to the home only a week prior to the permanent

custody hearing. Mother's visits went well but Mother took no meaningful steps to allow

visits to occur outside the visitation center. E.W. needs permanency and cannot and should

not wait until Mother is able to resolve her issues and make reunification with E.W. a priority.

       {¶ 38} This court agrees that a grant of permanent custody to the agency, where

E.W. can be adopted by a family that can provide for the child's basic needs, is the only

viable solution. Moreover, there were no other dispositional alternatives available to the

juvenile court. An order extending temporary custody pursuant to R.C. 2151.415(A)(6) was

not an available dispositional alternative, as R.C. 2151.415(D)(4) prohibits an extension of

temporary custody beyond two years after the filing of the February 2016 dependency

complaint.   An order for a planned permanent living arrangement pursuant to R.C.

2151.415(A)(5) was not an available dispositional alternative, as E.W. was not yet 16 years

old as required by R.C. 2151.415(C)(1). An order placing E.W. in the legal custody of a

relative or other interested individual was not an available dispositional alternative as no

such person filed a motion requesting legal custody or was identified in the complaint or a

motion as a proposed legal custodian as provided by R.C. 2151.353(A)(3). Finally, orders

that E.W. be returned to the custody of Mother or her biological father or placed into the

protective supervision of either parent pursuant to R.C. 2151.415(A)(1) and (2),

respectively, were practically unavailable because, as discussed above, Mother failed to

remedy the barriers to reunification with E.W. and E.W.'s father abandoned her.

Consequently, this court overrules Mother's assignment of error.



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{¶ 39} Judgment affirmed.


S. POWELL, P.J., and PIPER, J., concur.




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