[Cite as In re A.J.P.-H., 2017-Ohio-5515.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                         LAKE COUNTY, OHIO


IN THE MATTER OF:                                 :      OPINION

A.J.P.-H., T.M.P.-H., AND L.M.P.-H.,              :
DEPENDENT CHILDREN                                       CASE NOS. 2017-L-019
                                                  :                2017-L-020
                                                                   2017-L-021
                                                  :


Civil Appeals from the Lake County Court of Common Pleas, Juvenile Division, Case
Nos. 2014 DP 01744, 2016 NG 01560, and 2016 NG 01561.

Judgment: Affirmed.


Judith M. Kowalski, 333 Babbitt Road, #323, Euclid, OH 44123 (For Appellant-Mother,
Angela Perfetti).

Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and
Jason R. Shachner, Assistant Prosecutor, Lake County Administration Building, 105
Main Street, P.O. Box 490, Painesville, OH 44077 (For Appellee, Lake County
Department of Job and Family Services).


DIANE V. GRENDELL, J.

        {¶1}     Appellant, Angela Perfetti, appeals from the judgment of the Lake County

Court of Common Pleas, Juvenile Division, granting permanent custody of her children,

A.J.P.-H., T.M.P.-H., and L.M.P.-H., to appellee, the Lake County Department of Job

and Family Services (LCDJFS). The issues to be determined in this case are whether

R.C. 2151.414(B)(1)(d) is unconstitutional for allowing the termination of parental rights

after children’s services has temporary custody for an “arbitrary” period of time and

whether the trial court erred in finding it was in the best interest of the children to grant
permanent custody to LCDJFS when their mother had relapsed in her drug use, had

been recently released from a community based corrections facility, and did not have

housing for the children or employment.              For the following reasons, we affirm the

decision of the court below.

       {¶2}    Perfetti is the biological mother of L.M.P.-H., born July 15, 2006, T.M.P.-H,

born February 27, 2008, and A.J.P.-H., born May 13, 2013. Their biological father is

Thomas Halutick.

       {¶3}    On September 30, 2014, a Complaint was filed alleging A.J.P.-H. to be a

dependent child given her father’s incarceration and her mother’s arrest. On the same

date LCDJFS filed a Motion for Emergency Temporary Custody of all three children

based on these circumstances.1 This Motion was granted by the court.

       {¶4}    On November 5, 2014, a Magistrate’s Order was issued adjudicating

A.J.P.-H. dependant, which was subsequently adopted by the trial court.

       {¶5}    LCDJFS filed a Motion to Extend Temporary Custody on August 17, 2015,

noting some progress on the case goals, which the court granted.

       {¶6}    On November 30, 2015, a Motion to Terminate Temporary Custody and

for Protective Supervision was filed, again noting positive progress by the parents.

Following a Review Hearing on December 17, 2015, this Motion was dismissed.

       {¶7}    A second Motion to Extend Temporary Custody was filed on February 3,

2016, and was granted by the court.

       {¶8}    On July 21, 2016, LCDJFS filed a Motion for Permanent Custody.



1. According to trial testimony, L.M.P.-H. and T.M.P.-H. had been placed under LCDJFS’ protective
supervision beginning in January 2013, although documents relating to these prior proceedings are not
part of the record before this court since the cases were subsequently refiled.


                                                 2
       {¶9}   On October 20, 2016, LCDJFS filed Complaints alleging T.M.P.-H. and

L.M.P.-H. were neglected and dependent, based upon the Halutick’s incarceration and

Perfetti’s entry into NEOCAP, a community based corrections facility. On the same

date, a Motion for Emergency Temporary Custody was filed. This Motion was granted.

       {¶10} On November 23, 2016, a Motion for Permanent Custody of L.M.P.-H. and

T.M.P.-H. was filed.     It noted that their cases had been dismissed and refiled on

October 20, 2016, and that the two children had been in the custody of LCDJFS since

September 30, 2014, “with the exception of a brief moment on October 20, 2016.”

       {¶11} The Guardian Ad Litem filed an October 18, 2016 Report and a December

16, 2016 Supplemental Report. He visited the foster care placement and noted that the

“children appear well cared for and happy.” He recommended that permanent custody

be granted to LCDJFS, emphasizing that the parents have had almost four years to

remedy their drug addiction, their consistent periods of incarceration, and his belief that

it is unlikely they would be in a position to care for the children in the near future.

       {¶12} A hearing on the Motion for Permanent Custody was held on December

21, 2016. The following testimony was presented:

       {¶13} Nicole Corbett, a supervisor at LCDJFS, was assigned to the family’s case

in 2012. Corbett testified that, pursuant to the initial referral on September 24, 2012,

Halutick had overdosed on heroin and T.M.P.-H. and L.M.P.-H. had found him passed

out. The original case plan required that Halutick complete mental health and drug and

alcohol assessments. At that time, LCDJFS had protective supervision and the children

remained in the parents’ home.




                                               3
       {¶14} In May of 2013, Perfetti gave birth to A.J.P.-H., both tested positive for

opiates, and A.J.P.-H. remained in the hospital for approximately a month. A case plan

goal was added for Perfetti to complete a chemical dependency assessment, which she

did. According to Corbett, Perfetti stated that she had taken Percocet from an “old

prescription” before child birth due to back pain. Perfetti admitted that she had taken

about 10 Percocet in the month or so before A.J.P.-H.’s birth.

       {¶15} Anna Kessler, a social worker at Rainbow Babies and Children’s Hospital,

testified that A.J.P.-H. was transferred to Rainbow in May 2013 at about four or five

days old due to medical issues, including narcotic withdrawal and a positive toxicology

screen.

       {¶16} Jane Lewis, a dual diagnosis counselor at Signature Health, performed an

assessment of Thomas Halutick in June 2013 and referred him to a Suboxone

treatment program for opiate dependency. He admitted to using heroin for over a year

after he became addicted to pain pills following an injury. He did not return for follow-up

and treatment services.

       {¶17} Lauren Dickinson, an ongoing social worker with LCDJFS, worked on the

family’s case from November 2013 to June 2015. Perfetti had met the goal to have a

drug and alcohol assessment in 2013, although the plan was later modified to include

additional goals. Halutick was removed from the case plan from August 2014 to May

2015 due to his incarceration. He testified positive for opiates between March and June

of 2015.

       {¶18} In September 2014, LCDJFS filed for emergency custody of the children

because Halutick was incarcerated and Perfetti was arrested for failure to appear in




                                            4
relation to a drug possession charge. Perfetti was released from jail in November 2014.

After Perfetti’s release from jail, she was “extremely consistent with visitation.”

       {¶19} Dawn Argie, a social worker and chemical dependency counselor at Lake

Geauga Recovery Centers, worked with Perfetti in an opiate recovery program, to which

she was referred through the Lake County Court of Common Pleas beginning in

December 2014. The program is used to avoid incarceration if a defendant is compliant

with its terms, which include approximately a year of treatment and receiving monthly

injections of Vivitrol, an opiate blocker. Perfetti completed the outpatient treatment and

aftercare and provided negative drug screens. She missed a few appointments in the

last phase, individual counseling, but was discharged successfully around October of

2015, with a finding of “goals partially met.”

       {¶20} Muneera Yates, an ongoing social worker at LCDJFS, was assigned the

family’s case in October 2015. Halutick had completed the parent education goal and a

drug and alcohol program. Halutick was non-compliant with requests for drug screens

between November 2015 and April 2016 and was inconsistent with visitation. In July

2016, he was arrested for theft charges and would be incarcerated until April 2018.

       {¶21} Yates testified that Perfetti had a case plan goal to complete a drug and

alcohol assessment and follow recommendations. She participated in a program at

Lake Geauga Recovery Centers in relation to that goal. In November and December

2015 she was asked to take drug screens, which were both negative. Seven other

requested drug tests were not completed. Yates was aware that Perfetti was tested by

her probation officer and those screens did not come back positive.                   She also

completed a screen in December of 2016 which was negative.




                                                 5
       {¶22} When Yates received the case, the parents had overnight visitation with

the children, which transitioned into weekend visitation, due to their progress on the

case plan. In February 2016, this visitation was “pulled back” due to their failure to

complete drug screens and concerns with housing. They were evicted from their house

around the time she received the case, lived in a hotel briefly, moved to another house,

were “possibly evicted,” and then moved to another home. Yates testified that Perfetti

was permitted to set up visitation with the children’s foster parent but Perfetti “felt it was

an inconvenience to have him supervise the contact.” Perfetti did have phone calls with

the children and had written letters.

       {¶23} Perfetti was incarcerated in March 2016 in relation to a domestic violence

incident, which led to a probation violation. She had a positive drug screen for opiates

in March. While in jail, Perfetti was charged with Tampering with Drugs and Possession

of a Controlled Substance for having Suboxone. Lake County Sheriff’s Office Detective

Gerald Infalvi testified that Perfetti admitted she obtained Suboxone from another

inmate and concealed it in a Kool-Aid packet.            Perfetti ultimately pled guilty to

Possession of a Controlled Substance, a misdemeanor of the first degree.

       {¶24} According to Yates, after Perfetti was released from NEOCAP in

November 2016, she stated she was receiving anger management treatment,

medication management services, and getting counseling.               Perfetti subsequently

refused a home visit request.

       {¶25} The children have been visiting with a potential adoptive family on the

weekends since November 2016.           Yates testified that they had been in two foster

homes while in LCDJFS’ custody.




                                              6
       {¶26} Amber Blackston-Balogh, an outpatient therapist at Crossroads, has

treated T.M.P.-H. since March 2015. He was diagnosed with adjustment disorder and

post-traumatic stress disorder. This related to traumas such as the arrest of his father,

separation from his parents, and witnessing an overdose. He struggles with trusting

adults and engages in “acting out” behaviors, such as becoming aggressive or not

listening, to maintain control. Due to this, he needs caregivers who can provide a stable

and predictable environment.      Blackston-Balogh also worked with Perfetti from May

2015 to February 2016, at which time she stopped attending. At this point, Blackston-

Balogh recommended that visitation with Perfetti not continue because T.M.P.-H. was

not stable, and she believed it would reinforce a pattern of instability.

       {¶27} On Perfetti’s behalf, her adult daughter, Kali Perfetti, testified that she has

a close relationship with her three siblings and visits them when she is home from

college. She testified that her mother raised her, they are close, and she is caring. She

had not seen her mother or stepfather use drugs in the home. She speaks with her

mom on an almost daily basis.

       {¶28} Donna Perfetti, Perfetti’s mother, testified that Perfetti is currently living

with her and has lived there since her release from NEOCAP. Donna rents a room in a

friend’s house and the children could visit but would not be allowed to live there. If

Perfetti was given custody, Donna would move into an apartment with her and help out,

although she is physically unable to care for the kids on her own.

       {¶29} Perfetti, a former nurse at Cleveland Clinic, testified that she raised Kali

primarily on her own. Before A.J.P.-H. was born, Perfetti had surgery for diverticulosis

and had been prescribed Percocet. Prior to A.J.P.-H.’s birth, she used Percocet for




                                              7
back pain, although it was not prescribed for that purpose. Around the summer of 2013,

when she was no longer prescribed Percocet, she became sick and began using heroin.

She was arrested in September 2014 for possession of heroin and was incarcerated for

approximately two months.

      {¶30} Perfetti provided various reasons for the missed drug screens, including

not receiving written notices placed on her door and her lack of a driver’s license, which

was required to complete a screen. She testified that she was completing her bi-weekly

screens while on probation.

      {¶31} In relation to the domestic violence incident in 2016, she testified that she

had been drinking and subsequently pled guilty to disorderly conduct. This resulted in a

probation violation and her placement in NECOAP. She contended that a positive drug

test after her domestic violence arrest was a result of taking Vicodin she had been

prescribed due to dental work.

      {¶32} After her release from NEOCAP in November 2016, approximately seven

weeks before the custody hearing, she obtained a driver’s license, applied for jobs, and

began “working on” getting back her nursing license. She would not be able to obtain

her nursing license for at least two years. She has not been permitted to visit the

children since her release from NEOCAP, but she did send e-mails to L.M.P.-H. and

has talked to the children on the phone and sent letters while in NEOCAP. Perfetti was

willing to go to counseling with her children as well as find adequate housing.

      {¶33} On December 28, 2016, the trial court issued Judgment Entries granting

permanent custody of the children to LCDJFS. The court found that the children had

been in the custody of children’s services for twelve or more months of a consecutive




                                            8
twenty-two month period, and that reasonable efforts were made to return the children

to their home.     It also found that, by clear and convincing evidence, it was in the

children’s best interest for custody to be granted to LCDJFS. In reaching its decision,

the court outlined each of the best interest factors pursuant to R.C. 2151.414(D)(1)(a)-

(e).

       {¶34} Perfetti timely appeals and raises the following assignments of error:

       {¶35} “[1.] Ohio Revised Code Section 2151.414(B)(1)(d) on its face and as

applied violates the parents’ constitutional rights to due process.

       {¶36} “[2.] The juvenile court abused its discretion in determining that clear and

convincing evidence supports its decision to award permanent custody to the Lake

Department of Job and Family Services.

       {¶37} “[3.] The decision to award permanent custody was against the manifest

weight of the evidence.

       {¶38} “[4.] The trial court abused its discretion in finding the award of permanent

custody was in the best interest of the child.”

       {¶39} In her first assignment of error, Perfetti argues that the requirement in R.C.

2151.414(B)(1)(d) allowing a grant of permanent custody when the children have been

in the temporary custody of children services for 12 or more months of a consecutive 22

month period is arbitrary and violates her due process, since it allows “for a parent’s

rights to be terminated without even showing that he or she is unfit.”

       {¶40} This issue was not raised below. The Ohio Supreme Court has held that

the “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or

its application, which issue is apparent at the time of trial, constitutes a waiver of such




                                                9
issue and a deviation from this state’s orderly procedure, and therefore need not be

heard for the first time on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277

(1986), syllabus. As this court has explained, “[t]he waiver doctrine embodied by Awan

is discretionary.” State v. Schlee, 11th Dist. Lake No. 98-L-187, 1999 WL 1313651, 10

(Dec. 17, 1999), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

“Even where waiver is clear, this court reserves the right to consider constitutional

challenges to the application of statutes in specific cases of plain error or where the

rights and interests involved may warrant it.” M.D. at syllabus.

       {¶41} In reviewing the merits of the constitutional claim raised by Perfetti, we

find that her argument has previously been rejected by this court and no plain error

occurred.

       {¶42} R.C. 2151.414(B)(1)(d) allows for a grant of permanent custody in favor of

children’s services if it is in the best interest of the child and where “[t]he 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 * * *.” This court has held that “[R.C.] 2151.414(B)(1)(d) does not create an

unjustified presumption of parental unfitness.” In re A.J., 11th Dist. Trumbull No. 2010-

T-0041, 2010-Ohio-4553, ¶ 43; In re Stillman, 155 Ohio App.3d 333, 2003-Ohio-6228,

801 N.E.2d 475, ¶ 56 (11th Dist.) (the twelve/twenty-two criterion provides a parent with

ample opportunity to demonstrate his or her parenting fitness). “Contrary to appellant’s

assertion, we believe that inherent within R.C. 2151.414(B)(1)(d) rests the finding that

the parent is unable, unsuitable, or unfit to care for the child. If the child has been

placed in a children services agency’s temporary custody for at least twelve months of




                                             10
the prior twenty-two months, some reason must exist why the child has not been in the

parent’s care. The reason normally would be because the parent has been unable to

demonstrate that the parent is able, suitable, or fit to care for the child.” A.J. at ¶ 42,

citing In re Workman, 4th Dist. Vinson No. 02CA574, 2003-Ohio-2220, ¶ 39.

       {¶43} Perfetti contends that the application of the time limit overlooks progress

made on the case plan, emphasizing the amount of time that it takes to overcome a

drug addiction. However, the court analyzed all of the circumstances represented at the

hearing in reaching its conclusion, including testimony relating to her progress, which

will be addressed more specifically below.

       {¶44} Perfetti also contends that the time limit of “twelve/twenty two” is arbitrary,

but this argument has similarly been rejected by this court, on the grounds of standing,

given that the court did not grant permanent custody solely on this ground but also after

a full consideration of the best interest factors. Id. at ¶ 48-49. On this basis, this

argument also lacks merit.

       {¶45} Finally, to the extent that Perfetti points out that LCDJFS voluntarily

dismissed and refiled complaints relating to two of her children only two months before

the grant of permanent custody, she provides no argument as to how this relates to the

constitutionality of the pertinent statute or would warrant reversal.

       {¶46} The first assignment of error is without merit.

       {¶47} Because the remaining three assignments of error are all related to the

court’s application of the facts to the proper test for terminating parental rights, they will

be considered jointly.




                                             11
       {¶48} “[P]arents who are suitable persons have a ‘paramount’ right to the

custody of their minor children.” (Citations omitted.) In re Murray, 52 Ohio St.3d 155,

157, 556 N.E.2d 1169 (1990). The “extreme disposition” of permanently terminating a

parent’s rights with respect to a child, however, “is nevertheless expressly sanctioned *

* * when it is necessary for the ‘welfare’ of the child.” In re Cunningham, 59 Ohio St.2d

100, 105, 391 N.E.2d 1034 (1979). “[T]he [f]undamental or [p]rimary inquiry at the

dispositional phase of these juvenile proceedings is not whether the parents * * * are

either fit or unfit,” rather, it is “the best interests and welfare of that child [that] are of

paramount importance.” Id. at 106.

       {¶49} A trial court must apply R.C. 2151.414(B)’s two-prong analysis to

determine the outcome of a motion for permanent custody. First, the juvenile court

must determine, by clear and convincing evidence, that one of the following pertinent

circumstances applies: “the child cannot be placed with either of the child’s parents

within a reasonable time or should not be placed with the child’s parents”; the child is

abandoned; the child is orphaned; the child has “been in the temporary custody of one

or more public children services agencies * * * for twelve or more months of a

consecutive twenty-two-month period”; or the child has been adjudicated an abused,

neglected, or dependent child on three separate occasions. R.C. 2151.414(B)(1)(a)-(e).

       {¶50} If the court determines that one of the circumstances under R.C.

2151.414(B)(1) is present, the court proceeds to a determination of the second prong, in

which it considers whether the award of permanent custody to the agency is in the best

interest of the child pursuant to R.C. 2151.414(D).




                                              12
       {¶51} “In determining the best interest of a child * * *, the court shall consider all

relevant factors, including, but not limited to, * * * [t]he 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; * * * [t]he wishes

of the child * * *; [t]he custodial history of the child * * *; [t]he 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”; and whether any relevant factors

in (E)(7) to (11) of this section apply. R.C. 2151.414(D)(1)(a)-(e).

       {¶52} In her second assignment of error, Perfetti argues that the court erred in

determining permanent custody was supported by clear and convincing evidence, citing

R.C. 2151.414(E).

       {¶53} The trial court was not required to make a finding regarding whether the

children could be returned to Perfetti in a reasonable period of time or consider the

factors under R.C. 2151.414(E) and it did not make such a finding.                   See R.C.

2151.414(E) (if the court determines that one of the listed factors under R.C.

2151.414(E) applies, “the court shall enter a finding that the child cannot be placed with

either parent within a reasonable time or should not be placed with either parent”).

“‘When an agency seeks permanent custody pursuant to R.C. 2151.414(B)(1)(d),’

based on the fact that the child has been in the custody of a children’s services agency

for longer than 12 months of a 22 month consecutive period, as occurred in the present

case, ‘the court need not find that the child cannot or should not be placed with either

parent within a reasonable time as required by R.C. 2151.414(B)(1)(a).               The only

consideration is the best interest of the child.’” In re B.R.C., 11th Dist. Portage Nos.




                                              13
2013-P-0059 and 2013-P-0060, 2014-Ohio-69, ¶ 54, citing In re Thompson, 11th Dist.

Portage Nos. 2004-P-0023 and 2004-P-0024, 2004-Ohio-3686, ¶ 34; In re Janson, 11th

Dist. Geauga No. 2005-G-2656, 2005-Ohio-6712, ¶ 37-38 (the trial court is “not required

to consider the R.C. 2151.414(E) factors” when its finding under R.C. 2151.414(B)(1)(d)

is supported by clear and convincing evidence).

       {¶54} Here, the court found that, under R.C. 2151.414(B)(1)(d), the children had

been in the custody of children’s services for at least 12 of the last 22 months. In fact,

the children had continuously been in the custody of children’s services since

September of 2014 (with a very brief interruption for L.M.P.-H. and T.M.P.-H.). Perfetti

does not point to evidence to the contrary.       Thus, the remaining consideration is

whether it was proven, by clear and convincing evidence, that the custody decision was

in the best interest of the children.

       {¶55} In her third and fourth assignments of error, and to some extent in her

second assignment of error, Perfetti raises arguments regarding the best interest of the

children, contending that the court’s finding was against the weight of the evidence, that

clear and convincing evidence was lacking, and that the best interest finding was an

abuse of discretion.

       {¶56} Provided that the first prong is met, as discussed above, the juvenile court

may grant permanent custody to children’s services “only if it determines, by clear and

convincing evidence, that it is in the best interest of the child.” In re Krems, 11th Dist.

Geauga No. 2003-G-2535, 2004-Ohio-2449, ¶ 36.            The Ohio Supreme Court “has

defined clear and convincing evidence as ‘that measure or degree of proof which is

more than a mere “preponderance of the evidence,” but not to the extent of such




                                            14
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, 895 N.E.2d 809, ¶

42, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three

of the syllabus.

       {¶57} Further, when reviewing the weight of the evidence, the reviewing 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.” (Citation omitted.) Eastley v.

Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. “In weighing the

evidence, the court of appeals must always be mindful of the presumption in favor of the

finder of fact.” Id. at ¶ 21.

       {¶58} Here, the trial court determined, by clear and convincing evidence, that a

grant of permanent custody was in the best interest of the children, examining each of

the R.C. 2151.414(D)(1) best interest factors. This decision was not against the weight

of the evidence or otherwise made in error.

       {¶59} As to the first best interest factor, the court was required to consider the

relationship of the children and the parents, as well as their relatives. R.C.

2151.414(D)(1)(a). As to this factor, the court concluded that there was a lack of recent

visitation, emphasizing Perfetti’s incarceration, and noted that they are currently in a

safe environment.




                                            15
         {¶60} Perfetti contends that she was consistent with her visitation with the

children until she was not permitted to see them following her release from NEOCAP,

that she had been a good mother to her adult child, Kali, and that she and Kali have a

good relationship with the children as well. There is no question that Perfetti cares

about her children and that she has had a good relationship with them. This is only one

factor to consider, as the court must weigh all of the factors, and cannot give one

“greater weight than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d

498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. There are also legitimate concerns about

Perfetti’s incarceration and criminal activities over the period of time preceding the

permanent custody hearing. While some of Perfetti’s inability to visit with the children

was a result of this incarceration, it does not change the fact that it limited her ability to

interact with the children and that the court accurately portrayed the facts as to this

issue.

         {¶61} In relation to the wishes of the children, A.J.P.-H. was too young to

express such wishes, but L.M.P.-H. expressed in her in camera interview a desire that

permanent custody be granted while T.M.P.-H. stated a desire to live with his mother. It

is noteworthy here that the guardian ad litem recommended permanent custody be

granted to LCDJFS with respect to all three children. The trial court clearly stated that it

had considered the children’s wishes in reaching its decision.          Given the concerns

expressed by several witnesses, and the guardian ad litem’s belief that Perfetti is

incapable of caring for the children at any time in the near future given her problems

with drug addiction, it cannot be said T.M.P.-H.’s wishes should override these

concerns.




                                             16
       {¶62} As to the next factor, “the custodial history of the children,” as discussed

above, they remained in the custody of children’s services for well over the 12-of-22

month time period required to grant permanent custody.

       {¶63} The court also considered the need for a legally secure placement,

emphasizing both parents’ continued criminal offenses that placed the children in

danger.

       {¶64} There is no question that there was a legitimate concern regarding a

secure placement supported by the evidence in the record. After complying with case

plan goals at the end of 2015 and being granted additional visitation, in March of 2016,

Perfetti was arrested for domestic violence, while intoxicated, resulting in a probation

violation. While in jail, she was found in possession of a controlled substance, and was

subsequently placed in NEOCAP. She was released less than two months before the

hearing on the permanent custody motion. Halutick also had similar problems with

incarceration and is not scheduled to be released from prison until April of 2018.

Throughout the several years during which LCDJFS has been involved with the family,

there have been periods of compliance with the case plan, followed by arrests,

noncompliance with drug screens, and Perfetti’s subsequent relapse.

       {¶65} The particular need for a secure placement for T.M.P.-H. is also

underscored by the testimony of his therapist, Blackston-Balogh, that he was diagnosed

with adjustment disorder and post-traumatic stress disorder relating to traumas from his

parents’ activities. She explained that, because of these problems, he needs caregivers

who can provide a stable and predictable environment. The testimony of the witnesses

indicated that this would not be the case if he were to return to Perfetti’s custody.




                                             17
      {¶66} Perfetti emphasizes that she had completed several case plan objectives,

including drug treatment and she generally had negative drug screens.

      {¶67} While this may be accurate, “the parents’ progress is measured in part by

their completion of the case plan goals,” but “the case plan is not the only measure by

which a court determines whether to grant a motion for permanent custody.” In re J.H.,

11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 103. The major concern expressed

was not that Perfetti never attempted to comply with the case plan or did not complete

some of its objectives, but that she had relapsed by using drugs, was arrested, and had

only been out of NEOCAP for less than two months before the permanent custody

hearing. Prior compliance with the case plan does not negate these facts. The record

demonstrates several periods of compliance, interlaced with arrests and alcohol or drug

use, raising concerns of possible future relapse. Given the past circumstances and

facts of this case, it is difficult to say a legally secure placement could be achieved if

permanent custody is not granted.

      {¶68} To the extent that Perfetti contends she can now provide a more stable

environment since she has received treatment, been released from NEOCAP, is living

with her mother, and has obtained her driver’s license, concerns about stability remain.

The testimony presented by Perfetti’s witnesses establishes that she does not currently

have housing available for the children, nor does she have a job.               Testimony

established that Perfetti had difficulty maintaining stable housing in the past. Although

Perfetti believes she can provide a stable environment for the children, this is

speculative and, again, has not been accomplished over the more than two-year period

that they were not in her custody, a factor which weighs in favor of the trial court’s best




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interest determination. See B.R.C., 2014-Ohio-69, at ¶ 49, citing In re N.A.P., 5th Dist.

Washington Nos. 12CA30 and 12CA31, 2013-Ohio-689, ¶ 40 (the appellant’s

contention that he would obtain secure housing upon his release from a correctional

facility was “unproven and speculative,” especially given past housing concerns); In re

T.F., 11th Dist. Ashtabula No. 2009-A-0039, 2010-Ohio-590, ¶ 57.

       {¶69} Perfetti points to her accomplishments before her drug use, such as her

career as a nurse, and explains that her drug problem arose from her use of

prescription pain killers. This cannot override the best interest of the children and the

need for stability under the present circumstances, which are of “paramount” concern.

Cunningham, 59 Ohio St.2d at 106, 391 N.E.2d 1034.

       {¶70} Finally, under R.C. 2151.414(D)(1)(e), which requires consideration of the

factors under (E)(7)-(11), the court notes that Perfetti had not visited with the children

since February 2016.      This is an accurate statement.        As this was based on

circumstances such as her incarceration and later concerns about how her visitation

would impact the children, especially T.M.P.-H., it was a valid factor for the court to

weigh in its analysis.

       {¶71} When reviewing each of the factors considered by the lower court and the

evidence as a whole, its decision was supported by clear and convincing evidence and

its determination was not against the weight of the evidence. Given the major concerns

such as drug use and a lack of a stable environment, regardless of Perfetti’s contention

that she has made progress and will continue to do so, we emphasize that “it was the

General Assembly’s purpose in establishing the present procedures for the termination




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of parental rights ‘to prevent children from lingering in foster care.’” (Citation omitted.)

In re J.G., 11th Dist. Lake No. 2015-L-102, 2016-Ohio-896, ¶ 77.

       {¶72} The second through fourth assignments of error are without merit.

       {¶73} Based on the foregoing, the judgment of the Lake County Court of

Common Pleas, Juvenile Division, granting permanent custody of A.J.P.-H., T.M.P.-H.,

and L.M.P.-H. to LCDJFS, is affirmed. Costs to be taxed against appellant.



CYNTHIA WESTCOTT RICE, P.J., concurs,

THOMAS R. WRIGHT, J., concurs in part; concurs in judgment only in part with a
Concurring Opinion.


                     ______________________________________



THOMAS R. WRIGHT, J., concurs in part; concurs in judgment only in part with a
Concurring Opinion.


       {¶74} Under her first assignment, appellant asserts that R.C. 2151.414(B)(1)(d)

violates her constitutional rights to due process for two reasons: (1) the statute permits

the termination of parental rights without a finding that she is an unfit parent; and (2) the

statute is arbitrary because it puts a fixed time limit for her to overcome her substance

abuse problem. While I agree with the majority’s disposition of her first assertion, I do

not agree that appellant lacks standing to contest whether the time limit is arbitrary.

       {¶75} The majority’s reliance upon In re A.J., 11th Dist. Trumbull No. 2010-T-

0041, 2010-Ohio-4553, is misplaced. In A.J., the parent correctly noted that, after the

juvenile court finds that the criterion under R.C. 2151.414(B)(1)(d) is applicable, the




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court must also determine whether the termination of parental rights is in the child’s best

interest. The parent further noted that one of the statutory factors for determining the

child’s best interest is identical to the R.C. 2151.414(B)(1)(d) criterion: i.e., has the child

been in the state’s custody for twelve or more months of a consecutive twenty-two

month period? Based upon this, the A.J. parent contended that the statutory scheme

violated due process because it allowed the juvenile court to predicate its entire

decision to terminate upon a single factual finding.

       {¶76} The A.J. court held that the parent lacked standing to make that argument

because the trial court did not predicate its best interest analysis solely upon a “12 of

22” finding, but also cited other statutory factors in support of its determination. Id. at

¶48-49. Although I have no qualms with the A.J. standing analysis, it has no application

to the argument appellant asserts in this case. Unlike the parent in A.J., appellant

argues that R.C. 2151.414(B)(1)(d) violates due process because a parent is not given

sufficient time to overcome or modify the behavior problem that caused the initial

removal of the children.

       {¶77} In order to terminate a person’s parental rights, the state must satisfy a

two-prong conjunctive test: i.e., application of one of the four criteria listed under R.C.

2151.414(B)(1) and the best interest of the children. If appellant were to establish that

R.C. 2151.414(B)(1)(d) is unconstitutional, the first prong would be unsatisfied

warranting reversal.     She has standing to assert her “arbitrary” argument as the

challenged statute, if unconstitutional, has caused her injury, the very definition of

standing. How the majority finds otherwise escapes me.

       {¶78} Nevertheless, I further conclude that appellant’s argument is without merit.




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The time period affords a parent sufficient time to resolve parenting issues. In In re

Workman, 4th Dist. Vinton No. 02CA574, 2003-Ohio-2220, the parent challenged the

constitutionality of R.C. 2151.414(B)(1)(d) on the basis that it did not require a finding

that the parent was unfit to care for the child. The Workman court stated that since the

statute gives a parent twelve months to establish that she is fit to care for the child, she

“is not deprived of the ability to be reunified with the child or to demonstrate the parent’s

ability, suitability, or fitness to care for the child.” Id. at ¶40.

       {¶79} Moreover, “[t]he ‘12 of 22’ provisions set forth in R.C. 2151.413(D)(1) and

R.C. 2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s

parents against the importance of a speedy resolution of the custody of a child. See In

re K.G., 2004-Ohio-1421 at ¶ 19. Through the ‘12 of 22’ provisions in the permanent-

custody statutes, the legislature provides parents with 12 months to work toward

reunification before an agency can institute a permanent-custody action asserting R.C.

2151.414(B)(1)(d) grounds. Id. at ¶ 21; * * *.” In re C.W., 104 Ohio St.3d 163, 2004-

Ohio-6411, 818 N.E.2d 1176, ¶22.

       {¶80} A parent’s relationship with her child is included among the rights that are

protected under the Fourteenth Amendment against unwarranted usurpation, disregard,

or disrespect by the state. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d

308, ¶17, quoting M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 136 L.Ed.2d 473

(1996). Thus, since R.C. 2151.414(B)(1)(d) affects a fundamental right, it is subject to

the strict-scrutiny test under a substantive due process analysis. “A statute survives

strict scrutiny if it is narrowly tailored to serve a compelling state interest.” State v.

Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶18.




                                                 22
       {¶81} Given the importance of bringing stability to a child’s life, a parent cannot

be given unlimited time to modify behavioral problems. As a result, a parent must act

with the utmost diligence to make the necessary changes to provide a safe environment

for the child as soon as possible. Therefore, I conclude that R.C. 2151.414(B)(1)(d)

survives strict scrutiny because it serves a compelling state interest, i.e., the goal of

bringing stability to a child’s life as soon as possible, while still giving the parent a fair

opportunity to resolve her parenting issues.

       {¶82} Consistent with the foregoing, I concur in judgment only as to appellant’s

“arbitrary” argument under her first assignment. In all other respects, I concur in both

judgment and analysis.




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