[Cite as In re M.R., 2018-Ohio-5047.]



                                        IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




IN THE MATTER OF:                                  :
                                                          CASE NOS. CA2018-07-145
                      M.R., et al.                 :                CA2018-07-146
                                                                    CA2018-07-147
                                                   :
                                                                  OPINION
                                                   :              12/17/2018

                                                   :



              APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                                 JUVENILE DIVISION
                 Case Nos. JN2014-0287, JN2014-0288, and JN2015-0258



Jamie L. Landvatter, 10 Journal Square, Suite 300, Hamilton, Ohio 45011, guardian ad litem

D. Joseph Auciello, Jr., 6 South Second Street, Suite 309, Hamilton, Ohio 45011, for
appellant, A.R.

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Children Services



        RINGLAND, P.J.

        {¶ 1} Mother-appellant ("Mother"), appeals the decision of the Butler County Court of

Common Pleas, Juvenile Division, granting permanent custody of M.R., B.R., and E.C.R.

(referred to collectively, as the "children") to appellee, the Butler County Department of Job

and Family Services ("BCDJFS").
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       {¶ 2} On July 24, 2014, BCDJFS filed complaints for M.R. and B.R. alleging

dependency and neglect. Mother gave birth to M.R. on May 3, 2010 and B.R. on June 2,

2011. On March 31, 2015, the juvenile court adjudicated M.R. and B.R. dependent. On July

15, 2015, Mother gave birth to E.C.R. On September 15, 2015, BCDJFS filed a complaint

alleging E.C.R. dependent. The juvenile court adjudicated E.C.R. dependent on December

10, 2015. Following the respective adjudications, BCDJFS implemented case plan services

for Mother and the children remained in Mother's care under protective supervision. On

September 22, 2015, the juvenile court granted BCDJFS temporary custody of the children

and the agency placed them in a foster home.

       {¶ 3} On September 25, 2017, BCDJFS moved for permanent custody. The juvenile

court held four hearings between December 2017 and February 2018. The hearings

revealed the following facts.

       {¶ 4} Kelly Hurley, the BCDJFS caseworker assigned to this case, testified the initial

concerns causing the children's removal from Mother's care included Mother's instability in

living arrangements, her lack of engagement in mental health treatment, her failure to ensure

the children's attendance at school, and possible physical abuse of another unrelated child in

the home by Mother's then boyfriend. The agency attempted to address these issues while

the children remained in Mother's custody by offering Mother mental health and parenting

services. However, Mother failed to stay compliant with these services, which led to the initial

removal in September 2015.

       {¶ 5} Following removal, BCDJFS continued to provide intensive in-home parenting

programs, mental health services, visitation with the children, and permitted Mother to attend

the children's medical and mental health appointments. Initially, Mother's engagement with

mental health counseling improved, but over time Mother's attendance became sporadic and

she discontinued taking her prescribed psychiatric medications. The agency's concerns
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regarding Mother's living arrangements did not improve. Mother had approximately eight

different residences in three counties over the course of this case. Likewise, Mother was

sporadically employed throughout the case and mostly relied on her parents or her boyfriend

for financial assistance. Additionally, Mother failed to consistently take advantage of public

assistance programs to help meet the needs of the children.

       {¶ 6} In August 2017, the children returned to Mother's custody for approximately five

weeks before being removed for a second time and placed back into foster care. During this

period, BCDJFS became concerned with M.R. and B.R. missing a significant amount of

school, Mother's inability to follow through with obtaining a pediatrician for two of the children,

Mother's failure to obtain health insurance, and Mother's mental health. Mother's mental

health was a concern because she began demonstrating aggressive behaviors towards

agency personnel, failed to consistently engage with counseling, and failed to consistently

take her prescribed medication.

       {¶ 7} Following the second removal, the children returned to the same foster care

placement they had prior to reunification. Hurley testified the children were bonded with one

another and the foster family. The foster family was able to meet the children's basic needs

and ensure they received their necessary medical and psychiatric care. Hurley detailed that

the children's behavior significantly declined during reunification. Mother reported to Hurley

that M.R. would hurt herself when upset, B.R. had become physically aggressive, and E.C.R.

would bang her head on the floor, throw food, and try to bite Mother.

       {¶ 8} The foster father testified and corroborated the behavioral regression discussed

by Hurley. He testified that the children thrived when placed with his family, bonded with

other family members, and they referred to himself and the foster mother as "New Mommy

and Daddy." The foster family indicated a desire to adopt the children if the juvenile court

granted permanent custody to BCDJFS.
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       {¶ 9} Tiffany Penn from Pressley Ridge testified that she began working with Mother

in June or July 2016 with a goal of reunification. Penn was charged with observing visitation,

correcting Mother's parenting behaviors where appropriate, and teaching proper parenting

techniques. Penn testified Mother needed significant parenting education.

       {¶ 10} Mother testified she desired to obtain custody of her children. She testified

she was fit to parent the children and that she had engaged with case plan services, such as

various parenting programs, mental health counseling, and visitation. Mother admitted that

she had lived at many residences throughout the pendency of this case, but that she had

resided at an apartment in Lebanon, Ohio for an extended period before moving to her

current residence in Kettering, Ohio. Mother testified her visitation became more liberalized

over time and that she was capable of meeting the children's basic needs. Mother confirmed

her prior mental health diagnoses, including bipolar disorder, separation anxiety, general

anxiety, depression, and post-traumatic stress disorder ("PTSD").

       {¶ 11} On cross-examination, Mother detailed that she discontinued taking her

prescribed medications because her benefits lapsed and that said benefits were suspended

due to her failure to complete a required course. She indicated she had taken classes to

work as a state tested nurse aide. However, she could not do so until her driver's license

was reinstated. Mother confirmed the children's issues with school attendance and explained

that her father drove the children to their therapy appointments but would not return them to

school. Prior to the second removal, M.R. missed 7 of 12 school days, and B.R. missed 4 of

12. Additionally, the guardian ad litem ("GAL") for the children submitted a written report and

recommendation recommending a grant of permanent custody to BCDJFS.

       {¶ 12} On March 7, 2018, the magistrate issued a decision granting permanent

custody to BCDJFS. Mother objected to the magistrate's decision and, on June 12, 2018, the

juvenile court overruled Mother's objection and adopted the magistrate's findings and orders.
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Mother appealed the juvenile court decision raising one assignment of error.

       {¶ 13} Mother's Sole Assignment of Error:

       {¶ 14} THE TRIAL COURT ERRED BY FINDING CLEAR AND CONVINCING

EVIDENCE TO SUPPORT TRANSFER OF PERMANENT CUSTODY TO CHILDREN'S

SERVICES FINDING THE FACTORS OF R.C. 2151.141(B) & (D) PRESENT.

       {¶ 15} Mother asserts the juvenile court erred by granting permanent custody to

BCDJFS because its decision was not supported by clear and convincing evidence and

against the manifest weight of the evidence. Mother contends the juvenile court erred in

finding by clear and convincing evidence that granting permanent custody was in the

children's best interest.

       {¶ 16} As an initial matter, BCDJFS asserts that Mother failed to file specific

objections and did not claim plain error on appeal; therefore, she waived the foregoing

arguments. Juv.R. 40(D)(3)(b)(iv) provides that, except for a claim of plain error, a party

waives the right to assign error on appeal with respect to the juvenile court's adoption of any

factual finding or legal conclusion "unless the party has objected to that finding or conclusion

as required by Juv.R. 40(D)(3)(b)." Objections must be specific and state with particularity all

grounds for objection. Juv.R. 40(D)(3)(b)(ii). Further, the failure "to file specific objections is

treated the same as the failure to file any objections." In re D.R., 12th Dist. Butler No.

CA2009-01-018, 2009-Ohio-2805, ¶ 29.

       {¶ 17} Although Mother objected to the magistrate's decision, she did not specifically

object to the magistrate's best interest findings and did not claim plain error on appeal.

Rather, her objection included a nondescript statement asserting the magistrate abused its

discretion. Aside from asserting an incorrect standard of review, Mother's failure to file

specific objections is the same as failing to file any objections, and therefore, she is

precluded from raising the issue on appeal and from challenging the juvenile court's adoption
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of the magistrate's findings. See id. at ¶ 30. Therefore, her sole assignment of error is

overruled on this basis. Nevertheless, in the interest of justice, we will review the juvenile

court's decision to determine if was supported by clear and convincing evidence and not

against the manifest weight of the evidence. See, e.g., Miami Poplar Rentals, LLC v.

Hudoba, 12th Dist. Butler No. CA2013-06-094, 2014-Ohio-1323, ¶ 12.

       {¶ 18} "The rights to conceive and to raise one's children have been deemed

'essential' * * *." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972), quoting Meyer

v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). "Despite the fact that we have found

that parents who are suitable have a paramount right to raise and care for their children, it is

equally well settled that '[t]he fundamental interest of parents is not absolute.'" (Citations

omitted.) In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 40. "The constitutional right to

raise one's children does not include a right to abuse, exploit, or neglect them, nor is there a

right to permit others to do so." Id. "The state's power to terminate parental rights is

circumscribed * * *." Id. at ¶ 41, citing In re Cunningham, 59 Ohio St.2d 100, 105 (1979).

However, "when that authority is properly invoked, it is fully proper and constitutional to

remove children from their parents' care. [S]uch an extreme disposition is nevertheless

expressly sanctioned * * * when it is necessary for the 'welfare' of the child." In re AsF(F),

12th Dist. Madison Nos. CA2016-05-020 and CA2016-05-021, 2016-Ohio-7836, ¶ 12,

quoting R.C. 2151.01(A).

       {¶ 19} The state must prove by clear and convincing evidence that the statutory

standards for permanent custody have been met before a natural parent's right to custody

can be terminated. Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982); In re

E.G., 12th Dist. Butler No. CA2013-12-224, 2014-Ohio-2007, ¶ 6. "Clear and convincing

evidence is that measure or degree of proof which will produce in the mind of the trier of facts

a firm belief or conviction as to the allegations sought to be established." Cross v. Ledford,
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161 Ohio St. 469, 477 (1954). This 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 M.B., 12th Dist. Butler Nos. CA2014-06-130 and

CA2014-06-131, 2014-Ohio-5009, ¶ 6. An appellate court will not reverse a finding by the

juvenile court that the evidence was clear and convincing absent sufficient conflict in the

evidence. Id.

       {¶ 20} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. When considering a manifest weight of the evidence challenge, the reviewing court

weighs the evidence and all reasonable inferences, considers the credibility of the witnesses

and determines whether in resolving conflicts, the trial court clearly "lost its way" and created

such a "manifest miscarriage of justice" that the judgment must be reversed, and a new trial

ordered. In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 10.

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

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

two-part test." In re T.P., 12th Dist. Clermont No. CA2016-03-012, 2016-Ohio-5780, ¶ 13.

First, the court must find that the grant of permanent custody to the agency is in the best

interest of the children. R.C. 2151.414(B)(1). In so doing, the court shall consider all

relevant factors, including, but not limited to, the factors enumerated in 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 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
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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) thru (e); In re C.B.,

12th Dist. Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. To satisfy part two of the

permanent custody test, only one of the above five findings need be met. In re A.W., 12th

Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12.

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

a permanent custody hearing:

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

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

       {¶ 23} In granting BCDJFS' motion for permanent custody, the juvenile court

considered each of the best interest factors in light of the evidence presented at the hearings.

With respect to the first statutory factor, the juvenile court found that following the initial

removal, Mother's interactions with the children during visitation were observed to be positive

and age appropriate. The children displayed happiness during visitation and are bonded to

Mother. Upon their brief return to Mother's custody, the children displayed several behavioral
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issues. E.C.R. displayed severe temper tantrums, frequently banged her head on the floor,

and bit Mother and the other children. M.R. was physically aggressive, slapped and kicked

her brother, and was defiant with Mother, including severe meltdowns and physical violence

towards Mother and herself. B.R. was physically and verbally aggressive and displayed

anxiety symptoms.

       {¶ 24} The juvenile court found that after the second removal the children's behavior

improved and that the children adjusted back to the rules and routines of the foster home.

The children are doing well in their foster care placement and positively proceeding in

therapy. Additionally, the foster family expressed an interest in adopting the children.

       {¶ 25} In consideration of the second statutory factor, the juvenile court did not

conduct an interview with the children. Rather, the juvenile court relied on the GAL's report to

convey the children's wishes, which indicated M.R.'s desire to remain with her foster family.

Further, the GAL recommended the children remain together and be placed in the permanent

custody of BCDJFS.

       {¶ 26} With respect to the third statutory factor, the juvenile court reviewed the

children's custodial history and found the children were adjudicated dependent and had been

in the temporary custody of BCDJFS for 12 or more months of a consecutive 22-month

period.

       {¶ 27} In considering the fourth statutory factor, the juvenile court found the children's

need for a legally secure placement could only be achieved by granting permanent custody

to BCDJFS. Specifically, the juvenile court found the children are clearly in need of a legally

secure placement, as they have resided in foster care for an extended period. The juvenile

court noted the agency's greatest concerns at the initial removal were Mother's mental health

and her ability to provide consistent, appropriate parenting for the children. Throughout the

case, BCDJFS provided Mother with multiple services, including three parenting education
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programs, mental health treatment, and financial assistance, including gas vouchers,

furniture, groceries, and clothing. However, Mother inconsistently engaged in these services.

The juvenile court characterized her engagement as "minimal." The juvenile court found

Mother failed to adequately address her mental health issues, which has impacted her ability

to adequately parent the children. Further, Mother failed to maintain stable, independent

housing and employment, and did not take advantage of the opportunity to attend the

children's medical and therapy appointments.

       {¶ 28} Despite completing some services, Mother failed when given the opportunity to

demonstrate advancement in her ability to appropriately parent the children. The juvenile

court found that upon reunification, Mother failed to take appropriate steps to transfer the

children's medical and educational services to providers close to her residence. Mother

claimed she made arrangements for M.R. and B.R. to attend mental health treatment, but the

juvenile court found she failed to so. Further, Mother failed to take the children to follow up

medical and dental appointments and to establish a pediatrician for M.R. and E.C.R. The

juvenile court further found Mother failed to timely enroll M.R. and B.R. in school, and when

school began, Mother failed to ensure the children's attendance, as M.R. missed 7 of 12 days

and B.R. missed 4 of 12 days.

       {¶ 29} Finally, the juvenile court found that Mother failed to demonstrate an ability to

handle the children's behaviors, which as described above, significantly deteriorated upon

reunification. The juvenile court found that Mother "demonstrated a marked lack of control

over her anger, and displayed (in front of the children) angry, aggressive behaviors evincing

ongoing mental health concerns." The concerns that led to the initial removal were markedly

similar to the concerns that arose during reunification and caused the second removal.

Therefore, the juvenile court found that Mother failed to demonstrate she could provide for

the basic needs of the children and that they could be safely returned to her care.
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       {¶ 30} With respect to the fifth statutory factor, the juvenile court found that none of

the factors in R.C. 2151.414(E)(7) thru (11) apply to this case.

       {¶ 31} Based on the foregoing, the juvenile court found by clear and convincing

evidence that it was in the children's best interest to grant permanent custody to BCDJFS.

The juvenile court also found that pursuant to R.C. 2151.414(B) and (E), the children could

not be placed with Mother within a reasonable time or should not be placed with her.

However, we need not consider this finding, as the juvenile court's finding the children were

adjudicated dependent and had been in the temporary custody of BCDJFS for 12 or more

months of a consecutive 22-month period was supported by clear and convincing evidence.

In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12.

       {¶ 32} After thoroughly reviewing the record, we find the juvenile court's determination

regarding the best interest of the children is supported by clear and convincing evidence.

Although Mother testified she loves her children and believes reunification is in their best

interest, there are compelling reasons to weigh the best interest factors in favor of permanent

custody to BCDJFS.

       {¶ 33} The record contains extensive evidence regarding Mother's continued inability

to demonstrate that she can provide for the children's basic needs. At the outset of this case,

the children remained in Mother's care under protective supervision. However, Mother chose

not to take advantage of this opportunity to alleviate the agency's concerns, as the children

were removed due to instability in living arrangements, Mother's lack of engagement with

case plan services, and her inability to ensure the children's attendance at school. During

the pendency of this case, Mother did engage with parenting classes, visitation, and some

mental health services. However, her participation in case plan services in its totality has

been sporadic. She failed to consistently engage with mental health services and to take

prescribed psychiatric medication, she was only intermittently employed, and failed to obtain
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a stable residence, as she resided at approximately eight different locations in three counties

throughout this case.

       {¶ 34} Nevertheless, BCDJFS provided Mother another opportunity to demonstrate

she could meet the children's needs when custody was briefly returned. This period lasted a

mere five weeks before the children were removed from her care for a second time. During

this five-week period, Mother failed to ensure the children regularly attended school, to obtain

health insurance, to obtain a pediatrician for two of the children, and to consistently engage

with mental health services. Mother demonstrated aggressive behaviors towards BCDJFS

personnel and the children likewise began demonstrating behavioral issues. Thus, despite

the diligent efforts of BCDJFS to provide an opportunity for reunification through case plan

services, Mother failed to demonstrate any real progress in her ability to adequately parent

and provide for the children. Rather, the same concerns that caused the first removal

similarly led to the second removal. See In re E.W., 12th Dist. Warren Nos. CA2017-01-001

thru CA2017-01-003, 2017-Ohio-7215, ¶ 39 (affirming grant of permanent custody where the

parent failed to make any meaningful progress in demonstrating she could provide for the

children).

       {¶ 35} "It is important to have finality in custody determinations to protect the best

interest of the child[ren]." In re A.L.A., 11th Dist. Trumbull No. 2016-T-0022, 2016-Ohio-

5887, ¶ 20. The initiation of this case occurred approximately three and one-half years ago.

During this time, Mother has demonstrated that she can neither provide for the children's

basic needs nor consistently address her own mental health issues. Mother has consistently

failed to follow through despite exhaustive efforts by BCDJFS. The children need to know

whom they may rely upon for their care and nurture, and as the juvenile court found, the only

way to achieve this is by a stable, permanent, and healthy home environment.

       {¶ 36} Moreover, the children are bonded to one another and with their foster family,
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who have expressed a desire for adoption. The foster family has been able to meet the

children's basic needs and ensure they receive the medical and psychiatric care they need.

The behavioral concerns at the time of the second removal have mostly subsided and the

children are doing well and engaging in counseling. Additionally, the caseworker and the

GAL recommended granting permanent custody to BCDJFS.

      {¶ 37} Therefore, the juvenile court's determination regarding the best interest of the

children is supported by clear and convincing evidence and not against the manifest weight

of the evidence.

      {¶ 38} Accordingly, Mother's sole assignment of error is overruled.

      {¶ 39} Judgment affirmed.


      PIPER and M. POWELL, JJ., concur.




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