[Cite as In re Y.V., 2011-Ohio-2409.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 96061




                                         IN RE: Y.V.
                                        A Minor Child




                                         JUDGMENT:
                                          AFFIRMED


                                  Civil Appeal from the
                         Cuyahoga County Court of Common Pleas
                                    Juvenile Division
                                 Case No. AD09902303


        BEFORE:            Rocco, J., Jones, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      May 19, 2011
                             -i-


ATTORNEY FOR APPELLANT
                                 2

R. Brian Moriarty
R. Brian Moriarty, L.L.C.
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE,
C.C.D.C.F.S.

Yvonne C. Billingsley
C.C.D.C.F.S.
3955 Euclid Avenue
Cleveland, Ohio 44115

William D. Mason
Cuyahoga County Prosecutor

BY:   Gina S. Lowe
      Assistant Prosecuting Attorney
Cuyahoga County Department of Children
and Family Services
4261 Fulton Parkway
Cleveland, Ohio 44144


GUARDIAN AD LITEM

Mark Witt
6209 Barton Road
North Olmsted, Ohio 44070
                                          3

KENNETH A. ROCCO, J.:

      {¶ 1} Appellant F.V.1 appeals from the order of the Cuyahoga County

Court of Common Pleas, Juvenile Division, that terminated his parental

rights and granted permanent custody of the child Y.V. to the Cuyahoga

County Department of Children and Family Services (“the agency”).

      {¶ 2} Appellant presents one assignment of error.                He argues the

juvenile court’s order lacks an adequate basis in the evidence. Since this

court disagrees, his assignment of error is overruled, and the juvenile court’s

order is affirmed.

      {¶ 3} The record reflects the child was born on November 20, 2008.              At

that time, the child’s mother was serving a prison sentence for a probation

violation; therefore, the agency assumed emergency temporary custody of the

child. The agency placed the child in a foster home where her two siblings

also previously had been placed.

      {¶ 4} On July 1, 2009, the juvenile court adjudicated the child as

neglected and dependent. On October 6, 2009, after conducting a hearing,

the court placed the child into the agency’s full temporary custody.




      1The   parties are not referred to by their names because it is this court’s policy
to protect the privacy of children involved in parental rights cases.
                                     4

      {¶ 5} The agency filed a motion for an extension of temporary custody

on November 10, 2009. Upon a finding that some progress had been made in

alleviating the cause for the child’s removal from the parents, the court

granted the motion on February 2, 2010, and set the case for a review hearing

to be held a few months later.

      {¶ 6} However, on March 31, 2010, the agency filed a motion for

permanent custody.     The agency alleged Y.V. had been in its temporary

custody for twelve or more months of a consecutive twenty-two month period,

and that an award of permanent custody to the agency was in Y.V.’s best

interest.

      {¶ 7} According to the social worker’s affidavit attached to the motion,

Y.V.’s natural mother had failed to obtain any of the case plan objectives, had

“a severe cocaine problem” that remained unresolved, had never successfully

completed a substance abuse treatment program, and had her parental rights

involuntarily terminated as to her two other children based on the same facts.

      {¶ 8} The affidavit also stated that appellant failed to support Y.V.

since her birth and failed to establish paternity. Furthermore, the affidavit

alleged appellant had completed only that portion of the case plan that

required him to complete a mental health assessment; appellant had obtained
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neither appropriate housing for the child nor a stable income with which he

could provide for Y.V.

      {¶ 9} On September 30, 2010, the juvenile court conducted a hearing on

the agency’s motion.     Y.V.’s natural mother did not attend.     The agency

presented the testimony of the social worker assigned to the case, and

introduced several exhibits into evidence. Appellant elected to present no

evidence.

      {¶ 10} Following the hearing, the juvenile court granted the agency’s

motion for permanent custody.

      {¶ 11} Appellant   appeals    the   foregoing   judgment,   raising   one

assignment of error for review.

      “I.   The trial court’s order granting permanent custody to the

      [agency] was not based upon sufficient clear and convincing

      evidence.”

      {¶ 12} Appellant argues the juvenile court’s decision is unsupported by

the record. This court disagrees.

      {¶ 13} In order to terminate parental rights and grant permanent

custody to a county agency, the record must demonstrate by clear and

convincing evidence the following: 1) the existence of one of the conditions set

forth in R.C. 2151.414(B)(1)(a) through (d); and, 2) permanent custody is in
                                       6

the best interest of the child. In making the latter determination, the court

must consider the five factors set forth in R.C. 2151.414(D).        “Clear and

convincing evidence” is that quantum of evidence that instills in the trier of

fact a firm belief or conviction as to the allegations sought to be established.

Cross v. Ledford (1954), 161 Ohio St. 469, 477, 120 N.E.2d 118.

      {¶ 14} The “best interest determination” focuses on the child, not the

parent. In re Awkal (1994), 95 Ohio App.3d 309, 315, 642 N.E.2d 424. The

discretion that the juvenile court enjoys in determining whether an order of

permanent custody is in the best interest of a child should be accorded the

utmost respect, given the nature of the proceeding and the impact the court’s

determination will have on the lives of the parties concerned. Id., at 316.

      {¶ 15} In this case, the juvenile court determined, pursuant to R.C.

2151.414(B), that Y.V. had “been in the temporary custody of a public

children services agency * * * for twelve or more months of a consecutive

twenty-two month period.” Appellant cannot dispute that this requirement

was met.

      {¶ 16} The juvenile court also was required to determine that permanent

custody is in the best interest of the child. Pursuant to R.C. 2151.414(D), the

relevant     factors   include   the   following:   1)   the   interaction    and

interrelationship of the child with others; 2) the wishes of the child; 3) the
                                       7

custodial history of the child; 4) the child’s need for a legally secure placement

and whether such a placement can be achieved without permanent custody;

and, 5) whether any of the factors in divisions (E)(7) to (11) apply.

      {¶ 17} The juvenile court conducted an evidentiary hearing in this case,

and considered the testimony and evidence presented.             In determining

whether a grant of permanent custody to the agency was in Y.V.’s best

interest, the court considered the factors listed in R.C. 2151.414(D)(1)

through (5).

      {¶ 18} The juvenile court recognized that Y.V. had been in the agency’s

custody since November 2008, that no suitable relatives existed with whom

Y.V. could be placed, and that the agency had made reasonable efforts to

reunify the family. Appellant did not rebut testimony that indicated that, at

the time of the hearing, he lived in a single room with his girlfriend, and that,

while he occasionally worked in construction, he lacked permanent

employment.

      {¶ 19} Thus, even though appellant had completed a part of the case

plan, he had obtained neither stable housing nor a verifiable stable income.

Moreover, appellant had not established paternity of Y.V. and had not

resolved his immigration status in this country, which, at that time, was as

an illegal alien.
                                     8

      {¶ 20} In finding that granting permanent custody to the agency was in

Y.V.’s best interest, the juvenile court thoroughly considered the evidence and

testimony presented. Y.V.’s positive relationship with appellant was not, in

itself, enough to demonstrate a contrary conclusion. This court previously

has stated that, “the mere existence of a good relationship is insufficient.

Overall, we are concerned with the best interest of the child, not the mere

existence of a relationship.”     In re K.M., Cuyahoga App. No. 95374,

2011-Ohio-349, ¶23, citing In re R.N., Cuyahoga App. No. 83121,

2004-Ohio-2560.

      {¶ 21} The juvenile court considered the social worker’s testimony that

the agency had placed Y.V. in a foster home “with her siblings and she ha[d] a

very good relationship with the foster parents and her siblings,” that Y.V. had

“really bonded” with her current family, and that Y.V. seemed “happy and

healthy” in her current placement. The social worker explained that Y.V.’s

foster parents provided for all of her health and physical and speech therapy

needs, and that they wished to adopt her as they had adopted her siblings.

Based upon the testimony and the recommendation made by Y.V.’s guardian

ad litem, the juvenile court found that permanent custody was in Y.V.’s best

interest.
                                       9

      {¶ 22} Appellant questions the juvenile court’s failure to consider a

planned permanent living arrangement (“PPLA”).                However, the record

reflects the agency did not request this form of disposition.            Neither did

appellant raise this issue in the juvenile court.

      {¶ 23} A “PPLA” is an order by which the juvenile court grants legal

custody of a child to an agency without terminating parental rights. R.C.

2151.011(B)(37). Pursuant to R.C. 2151.353(A)(5), the juvenile court is not

authorized to consider a PPLA unless the children services agency has

requested   such   a   disposition.     In   re     A.B.,   110   Ohio   St.3d   230,

2006-Ohio-4359, 852 N.E.2d 1187, ¶37. Therefore, without the agency’s

request for such a disposition, the juvenile court could not place Y.V. in a

PPLA. Id., at the syllabus.

      {¶ 24} The supreme court recognized that a “[PPLA] is to be considered

as a last resort for the child,” reflecting “the General Assembly’s goal is to

avoid allowing children to languish indefinitely in foster care.” Id. at ¶36.

This court also has recognized that “[a] child’s best interests require

permanency and a safe and secure environment.”              In re Holyak (July 12,

2001), Cuyahoga App. No. 78890.

      {¶ 25} A review of the record shows clear and convincing evidence

supports the juvenile court’s determination that permanent custody is in the
                                    10

best interest of Y.V. Therefore, the juvenile court did not err in granting

permanent custody to the agency. In re K.M., ¶25.

     {¶ 26} Appellant’s sole assignment of error, accordingly, is overruled.

     Judgment affirmed.

     It is ordered that appellee recover from appellant costs herein taxed.

     The court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate be sent to said court to carry this

judgment into execution.




     A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



_______________________________
KENNETH A. ROCCO, JUDGE

LARRY A. JONES, P.J., and
SEAN C. GALLAGHER, J., CONCUR
