[Cite as In re C.B., 2015-Ohio-3709.]



                                        IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                          CLERMONT COUNTY




IN THE MATTER OF:                                  :

                 C.B.                              :      CASE NO. CA2015-04-033

                                                   :              OPINION
                                                                   9/14/2015
                                                   :

                                                   :



            APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
                             JUVENILE DIVISION
                            Case No. 2012 JC 4409



Nancy W. Miller, 2400 Clermont Center Drive, #204A, Batavia, Ohio 45103, guardian ad
litem

Suellen Brafford, 285 East Main Street, Batavia, Ohio 45103, for appellant, A.L.

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee, Clermont County Children
Services

Jeffrey and Debra Williams, 1309 High Street, Bellaire, Ohio 43906, pro se

Corky Barre, Jr., Roederer Correctional Complex, P.O. Box 69, LaGrange, KY 40031



        HENDRICKSON, J.

        {¶ 1} Appellant, the mother of C.B., appeals a decision of the Clermont County Court

of Common Pleas, Juvenile Division, granting permanent custody of C.B. to a children's
                                                                           Clermont CA2015-04-033

services agency. For the reasons stated below, we affirm the decision of the juvenile court.

       {¶ 2} In May 2012, C.B. was admitted to Cincinnati Children's Hospital and

diagnosed with Stage IV Neuroblastoma, a form of cancer. At the time, C.B. was three years

old. On June 5, 2012, C.B. was discharged from the hospital in the custody of mother and

father. Though C.B. was discharged, he remained critically ill and mother and father were

given strict instructions regarding his care. The next day C.B. was readmitted to the hospital

after a home health care worker had trouble contacting mother and father. Once the home

health care worker made contact with mother and father, she discovered C.B. was running a

fever and his feeding tube was lost. The following week father was found passed out and

unresponsive in C.B.'s hospital room due to a heroin overdose. Father was banned from the

hospital and was subsequently charged with criminal trespassing when he attempted to

sneak into the hospital.

       {¶ 3} On June 15, 2012, the Clermont County Department of Job and Family

Services (agency) filed a complaint alleging C.B. was a neglected child. On the same day,

C.B. was placed in the emergency custody of the agency. Thereafter, C.B. was adjudicated

a neglected child and remained in the agency's temporary custody. During this time, C.B.

continued to receive cancer treatment and remain in the hospital.

       {¶ 4} In November 2012, mother and father were arrested and incarcerated based on

allegations that they were involved in a robbery and both father and mother were

subsequently convicted of this offense. Father was sentenced to a 15-year prison term and

mother was sentenced to a ten-year term. While father and mother were incarcerated, C.B.'s

maternal grandparents moved for legal custody. The maternal grandparents' motion was

denied by the juvenile court.1 In June 2013, C.B. was placed with foster parents and began


1. Grandparents appealed the denial of legal custody to this court and we dismissed the appeal for lack of
jurisdiction. In re C.B., 12th Dist. Clermont No. CA2013-12-094, 2014-Ohio-3784.
                                                   -2-
                                                                            Clermont CA2015-04-033

transitioning from staying at the hospital to living with foster parents at their home. At the

time of his placement, C.B. had been hospitalized for over a year. C.B. remained with his

foster family at their home until April 2014 when his cancer returned. C.B. was hospitalized

for approximately a month while he received treatment.

        {¶ 5} On September 15, 2014, the agency moved for permanent custody of C.B. A

hearing regarding the motion was held before a magistrate on January 16, 2015. The

magistrate heard testimony from several witnesses, including mother, who explained that she

was granted early release from her ten-year prison sentence. Mother stated she has

completed drug treatment and life skills programs, obtained her GED, and is currently staying

at a residential treatment facility in northern Kentucky while she is on probation. Mother

requested that C.B. be returned to her custody. After the presentation of the evidence, the

magistrate issued its decision finding it was in C.B.'s best interest to grant the agency

permanent custody. Mother filed objections to the magistrate's decision, which the juvenile

court subsequently denied, thereby affirming and adopting the magistrate's decision in full.

        {¶ 6} Mother now appeals, asserting a sole assignment of error:

        {¶ 7} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS DECISION

AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE AGENCY

DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.

        {¶ 8} Mother argues the juvenile court's finding that it was in C.B.'s best interest to
                                                                                                             2
grant the agency permanent custody was against the manifest weight of the evidence.

Before a natural parent's constitutionally protected liberty interest in the care and custody of

his or 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.



2. Father has not appealed the juvenile court's decision granting permanent custody of C.B. to the agency.
                                                    -3-
                                                                     Clermont CA2015-04-033

Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). 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 S.H., 12th Dist. Butler Nos.

CA2014-12-259 and CA2015-01-008, 2015-Ohio-1763, ¶ 11. Thus, a reviewing court will

reverse a finding by the juvenile court that the evidence was clear and convincing only if there

is a sufficient conflict in the evidence presented. In re S.U., 12th Dist. Clermont No. CA2014-

07-055, 2014-Ohio-5748, ¶ 10. Clear and convincing evidence is '''that measure or degree of

proof which is more than a mere "preponderance of the evidence," but not to the extent of

such certainty as is required "beyond a reasonable doubt" in criminal cases, and which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.'" In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 42, quoting Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶ 9} Even if a trial court's judgment is sustained by sufficient evidence, an appellate

court may nevertheless conclude that the judgment is against the manifest weight of the

evidence. In re S.M., 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 9. In

determining whether a decision is against the manifest weight of the evidence, an appellate

court "weighs the evidence and all reasonable inferences, considers the credibility of

witnesses and determines whether in resolving conflicts in the evidence, the finder of fact

clearly lost its way and created such a manifest miscarriage of justice that the judgment must

be reversed and a new trial ordered." Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-

2179, ¶ 20. The presumption in weighing the evidence is in favor of the finder of fact, which

we are especially mindful of in custody cases. In re C.Y., 12th Dist. Butler Nos. CA2014-11-

231 and CA2014-11-236 thru CA2014-11-238, 2015-Ohio-1343, ¶ 25. "If the evidence is

susceptible to more than one construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment, most favorable to sustaining
                                               -4-
                                                                    Clermont CA2015-04-033

the verdict and judgment." Eastley at ¶ 21.

       {¶ 10} 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 G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. Initially,

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 provided under R.C. 2151.414(D). In re D.K.W., 12th

Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Next, 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 for the

second prong of the permanent custody test to be satisfied. In re T.D., 12th Dist. Preble No.

CA2009-01-002, 2009-Ohio-4680, ¶ 15.

       {¶ 11} In this case, the juvenile court found by clear and convincing evidence that C.B.

had been in the temporary custody of the agency for more than 12 months of a consecutive

22-month period preceding the filing of the agency's motion for permanent custody on

September 15, 2014. Mother does not dispute this finding. Rather, as noted above, mother

merely disputes the juvenile court's finding that granting permanent custody of C.B. to the

agency was in his best interest when considering the factors under R.C. 2151.414(D).

       {¶ 12} 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
                                              -5-
                                                                     Clermont CA2015-04-033

              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.

       {¶ 13} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found C.B. has not

had a consistent relationship with any of his biological relatives and, due to C.B.'s battles with

two bouts of cancer, having a strong support system is especially important to his welfare. In

regards to father, the juvenile court found he has not demonstrated an interest in maintaining

a relationship with C.B., due to incarceration and the denial of visitation with C.B. at the

hospital after he passed out from a drug overdose. With respect to mother, the juvenile court

found mother's contact with C.B. at the hospital was also terminated due to the negative

impact her communications were causing the child. As to the maternal grandparents, the

juvenile court found that they used to enjoy spending time with C.B. at family events and felt

bonded to him, but they have not seen C.B. for over a year. Finally, the juvenile court found

C.B.'s foster family has created a support system for the child as he battles cancer and the

family is committed to maintaining a constant, comforting presence for C.B.

       {¶ 14} In considering R.C. 2151.414(D)(1)(b), the juvenile court noted that the

                                               -6-
                                                                    Clermont CA2015-04-033

guardian ad litem (GAL) recommended C.B. remain with his foster family. The juvenile court

quoted from the GAL's report which stated that C.B. expressed a clear desire to remain with

his foster family and he "is doing well academically and appears strongly grounded by the

lively environment, loving support, and predictable rhythm of family life."

       {¶ 15} As stated previously, the juvenile court found C.B. has been in the temporary

custody of the agency for 12 or more months of a consecutive 22-month period which

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

       {¶ 16} Regarding R.C. 2151.414(D)(1)(d), the juvenile court found C.B. is in need of a

legally secure permanent placement and the only means for C.B. to obtain such a placement

is for the agency to be granted permanent custody. The juvenile court noted that while

mother has made improvements in her own life since she was incarcerated, she is still not in

a position to provide a home for C.B. The juvenile court stated mother has time remaining to

serve in the residential treatment facility, is unemployed, her relationship with C.B. is poor,

and there is no indication when her relationship with the child may improve. The juvenile

court noted that C.B.'s welfare depends upon stability and due to C.B.'s substantial health

issues, uncertainty in regards to his future should not be prolonged. The juvenile court found

that C.B.'s foster family has provided and is willing to continue to provide stability while

ensuring C.B. receives all the health care and therapy he requires. Therefore, the juvenile

court found it would be detrimental for C.B. to be removed from his foster family and that

granting permanent custody to the agency means that C.B. can find comfort in knowing he

has a permanent home. Based on consideration of the statutory factors, the juvenile court

determined by clear and convincing evidence it was in the best interest of C.B. to grant

permanent custody to the agency.

       {¶ 17} Mother argues the juvenile court's decision is not in C.B.'s best interest. Mother

maintains her relationship with C.B. suffered because the agency restricted her visits at the
                                              -7-
                                                                    Clermont CA2015-04-033

hospital and eventually requested she cease all communication. However, the evidence

demonstrated mother's poor relationship with C.B. was a result of her own poor decisions.

Mother admitted she frequently visited C.B. at the hospital while high on heroin prior to being

incarcerated. While mother has not seen C.B. since October 2012, she was imprisoned from

November 2012 until December 2014. Additionally, the agency's request that mother stop

calling or writing letters to C.B. in February 2013 was based on a psychologist's

recommendation. An agency caseworker explained that a psychologist recommended

mother stop contact because her communications caused C.B. to have "meltdowns" and

C.B. "reacted negatively, crying, throwing things, becoming upset, very upset where it was

difficult to calm him down."

       {¶ 18} Mother also challenges the juvenile court's reliance on C.B.'s desire to remain

with his foster family in its decision. Mother asserts that due to C.B.'s young age, the juvenile

court gave too much weight to C.B.'s wishes. While the juvenile court did consider C.B.'s

wishes, this was one factor among a number of best interest factors in the juvenile court's

decision. Additionally, the GAL recommended that permanent custody be granted to the

agency and C.B. remain with his foster family.

       {¶ 19} Lastly, mother maintains that the juvenile court's decision diminished the

substantial gains she has made in her life. Mother points to the fact that she was granted

early release from her ten-year prison sentence because she completed several job and life

skill programs, received her GED, and became a GED tutor for other inmates. Mother also

testified that she no longer uses heroin, attends AA, and receives drug treatment and other

life skill lessons at the residential treatment facility where she resides. While we commend

mother for the progress she has made in her life, at the time of the permanent custody

hearing, mother did not have a permanent home or a job and would not be able to obtain a

job or live outside the residential treatment facility for several months. In light of C.B.'s
                                               -8-
                                                                    Clermont CA2015-04-033

serious health concerns (which require regular administration of chemotherapy drugs, a

vigilant watch over his health and possible relapses, and transportation to and from several

medical appointments a month), the juvenile court's decision to grant permanent custody to

the agency was in C.B.'s best interest. See In re E.G., 12th Dist. Butler No. CA2013-12-224,

2014-Ohio-2007, ¶ 25-27 (best interest includes consideration of child's special needs); In re

G.K., 12th Dist. Preble Nos. CA2015-01-006 and CA2015-02-007, 2015-Ohio-2581, ¶ 40-41.

       {¶ 20} In light of the forgoing, and after carefully reviewing the record, the juvenile

court's findings are supported by sufficient, credible evidence and are otherwise not against

the manifest weight of the evidence. The evidence established that C.B.'s well-being

depends on being in a loving stable home with caregivers who vigilantly monitor his health

and that C.B.'s foster family provides C.B. with this environment. The juvenile court properly

considered the appropriate factors under R.C. 2151.414(D) and acted in C.B.'s best interest

by granting permanent custody to the agency.          After weighing the evidence and all

reasonable inferences and considering the credibility of the witnesses, we find there was no

manifest miscarriage of justice in the juvenile court's decision.

       {¶ 21} Accordingly, the juvenile court's decision granting permanent custody of C.B. to

the agency was not against the manifest weight of the evidence and was supported by

sufficient, credible evidence. Mother's sole assignment of error is overruled.

       {¶ 22} Judgment affirmed.


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




                                             -9-
