[Cite as In re C.M.B., 2020-Ohio-126.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

                                               :
 IN RE: C.M.B., C.G., M.L.B. & C.J.G.          :
                                               :   Appellate Case No. 28523
                                               :
                                               :   Trial Court Case Nos. 2016-6164
                                               :                        2016-6166
                                               :                        2016-6168
                                               :                        2016-6169
                                               :
                                               :   (Appeal from Common Pleas
                                                   Court – Juvenile Division)

                                          ...........

                                         OPINION

                           Rendered on the 17th day of January, 2020.

                                          ...........

MATHIAS H. HECK JR. by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
      Attorney for Appellee, State of Ohio

ROBERT ALAN BRENNER, P.O. Box 340214, Beavercreek, Ohio 45434
    Attorney for Appellant, Mother

                                         .............

HALL, J.
                                                                                       -2-


      {¶ 1} Mother appeals from the trial court’s judgment entry terminating her parental

rights and awarding appellee Montgomery County Children Services (“MCCS”)

permanent custody of four of her children.

      {¶ 2} Mother advances two assignments of error. First, she contends the trial court

erred in finding that awarding permanent custody to MCCS was in the children’s best

interest. Second, she claims the trial court erred in denying a request for a continuance

so a home study could be completed for a relative in Florida.

      {¶ 3} The record reflects that MCCS filed separate dependency complaints in

October 2016 regarding each of the four children at issue. At the time of the complaints,

the children were ages six, eight, nine, and eleven. The complaints alleged that the

children were dependent based on (1) sexual abuse allegations against Mother’s

boyfriend with regard to another of Mother’s children and (2) Mother’s admitted mental-

health issues as well as the agency’s substance-abuse concerns. Following orders of

interim temporary custody, the children were adjudicated dependent in November 2016

and MCCS obtained temporary custody. MCCS later obtained an extension of temporary

custody. Before that extension expired, the agency moved for permanent custody of all

four children in March 2018. Following two continuances of a scheduled dispositional

hearing to allow a home study to be completed for the paternal grandmother in Florida,

the matter was set for a November 8, 2018 dispositional hearing. The day before the

hearing, the attorney for the children requested another continuance for the Florida home

study to be completed. That request was denied. Oral requests for a continuance also

were denied at the outset of the November 8, 2018 hearing. The only witnesses at the

hearing were a caseworker and a psychologist, both of whom were called by MCCS.
                                                                                         -3-


Mother did not testify, nor did either of the two fathers of the children at issue. Based on

the evidence presented, a magistrate awarded MCCS permanent custody of the four

children. Mother timely objected. As relevant to the present appeal, Mother objected to

the magistrate’s finding that awarding permanent custody to MCCS was in the children’s

best interest. She also objected to the magistrate’s denial of another continuance to allow

the Florida home study to be completed.

       {¶ 4} In an August 12, 2019 decision and judgment entry, the trial court overruled

Mother’s objections and awarded MCCS permanent custody of the children. In a ruling

that was 17 single-spaced pages, the trial court independently examined the evidence

presented at the dispositional hearing. It addressed and considered Mother’s progress on

her case-plan objectives. It also found that the children had been in MCCS’s temporary

custody for at least 12 of the preceding 22 months and that awarding permanent custody

to the agency was in the children’s best interest. In reaching its best-interest

determination, the trial court analyzed and made findings with regard to each of the

pertinent statutory factors. Finally, with regard to the continuance issue, the trial court

noted that the permanent-custody hearing already had been continued twice to allow a

Florida home study to be completed. The trial court noted that the children had been in

MCCS’s care for more than two years and that it remained unclear when the home study

would be completed or whether the home would be approved. Under these

circumstances, the trial court found a third continuance unwarranted.

       {¶ 5} A trial court’s decision to grant permanent custody to the State and to

terminate parental rights must be supported by clear and convincing evidence. In re L.C.,

2d Dist. Clark No. 2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion
                                                                                            -4-


standard, and we will not disturb such a decision on evidentiary grounds “if the record

contains competent, credible evidence by which the court could have formed a firm belief

or conviction that the essential statutory elements for a termination of parental rights have

been established.” (Citation omitted.) Id.; see also In re S.S., 2d Dist. Miami No. 2011-

CA-07, 2011-Ohio-5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is

unreasonable, arbitrary, or unconscionable. S.S. at ¶ 7. Therefore, a trial court’s

termination of parental rights cannot be reversed based on a mere difference of opinion

or substitution of our judgment for that of the lower court. Id.

       {¶ 6} Under R.C. 2151.414, the trial court was authorized to award permanent

custody to MCCS based on a finding, by clear and convincing evidence, (1) that granting

permanent custody to the agency was in the best interest of Mother’s children and (2)

that the children had been in the temporary custody of MCCS for 12 or more months of a

consecutive 22-month period. With regard to the best-interest determination, R.C.

2151.414(D) directs the trial court to consider all relevant factors, including but not limited

to: (1) the interaction and interrelationship of the child with the child’s parents, relatives,

foster parents and any other person who may significantly affect the child; (2) the wishes

of the child; (3) 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 12 or more months of a consecutive 22-month period; (4) 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; and (5) whether any of

the factors in R.C. 2151.414(E)(7) through (11) are applicable. In re S.J., 2d Dist.

Montgomery No. 25550, 2013-Ohio-2935, ¶ 14-15.
                                                                                          -5-


       {¶ 7} Here the trial court made the findings required to award MCCS permanent

custody. Among other things, it found by clear and convincing evidence that Mother’s

children had been in MCCS’s temporary custody for more than 12 months of a

consecutive 22-month period and that an award of permanent custody to the agency was

in the children’s best interest. On appeal, Mother does not dispute the 12-in-22 finding,

which is supported by the record. The only issue raised in Mother’s first assignment of

error is whether the trial court’s best-interest finding was supported by clear and

convincing evidence.1

       {¶ 8} In its decision, the trial court made comprehensive findings on each of the

statutory best-interest factors. It also assessed Mother’s progress on each of her case-

plan objectives. The trial court noted that MCCS initially became involved based on

allegations that a sibling of the four children at issue was being sexually abused. An

investigation resulted in that allegation being unsubstantiated. In the course of its

investigation, however, MCCS learned of allegations that one of the four children involved

in this case also was being sexually abused by Father Two, with whom Mother was

residing. A caseworker described that allegation as being “indicated,” meaning the

agency had enough evidence to believe abuse occurred but not enough evidence to

prove it. As set forth above, MCCS also had concerns about Mother’s mental health and

allegations of drug abuse. After MCCS became involved and filed its dependency



1 The father of two of Mother’s four children (“Father One”) had no involvement with
MCCS and took no part in the proceedings below although counsel did appear on his
behalf. The father of the other two children (“Father Two”) did participate in a case plan
and did appear for the permanent-custody hearing. However, he did not testify at the
hearing, did not file any objections to the magistrate’s decision, and is not a party to this
appeal by Mother.
                                                                                       -6-


complaints, the four children at issue were placed in foster care. They had been in foster

care for more than two years at the time of the permanent-custody hearing.

      {¶ 9} With regard to Mother’s case-plan objectives, the trial court noted that she

had completed a mental-health assessment, which included diagnoses of bipolar and

schizoid affective disorders, and had followed recommendations, including medication.

The trial court also noted that Mother had completed a drug and alcohol assessment and

that she did not receive any follow-up recommendations. Mother also successfully had

completed parenting classes and had visited her children consistently.

      {¶ 10} The trial court’s concerns with regard to Mother’s case plan involved

housing and income. The trial court made the following findings:

             At the time of the hearing, Mother reported living with [Father Two]

      at his aunt’s house. (Tr. 19). The caseworker stated that the aunt’s

      residence is a two bedroom home and would not be enough space for four

      children. (Tr. 19). Mother was given information on Section 8 housing, but

      she did not qualify for [S]ection 8 housing, as she had owed money to a

      landlord following an eviction from the subsidized housing in September

      2017. (Tr. 21). Mother’s housing was appropriate from October 2016

      through September 2017. (Tr. 21). After it was determined that Mother was

      not eligible for Section 8 housing, the caseworker referred Mother to

      PepZee Realty. (Tr. 55). The Agency reported that they would not be able

      to help Mother with her past bills. (Tr. 56). The caseworker discussed with

      Mother that she would need to pay Section 8 prior to the Agency being able

      to assist her with housing. (Tr. 56). The Agency has not made any referrals
                                                                                       -7-


      for housing since that time. (Tr. 59).

             Mother and [Father Two] acquired an apartment in “The Foundry,”

      which the Agency was in hopes would be appropriate because it had

      enough space for all the children. (Tr. 21). However, [Father Two] lost his

      employment and they moved out. (Tr. 21-22). The parents have not had

      appropriate housing since that time. (Tr. 22). The Agency has concerns with

      Mother residing with [Father Two] due to allegations of sexual abuse that

      were indicated. (Tr. 28).

             Mother has worked sporadically throughout the case, including jobs

      at McDonald’s, Capital Cleaners, Mahle, Sears, and a few factory jobs. (Tr.

      23). At the time of the hearing, Mother had just recently obtained a job at

      McDonald’s. (Tr. 23). The Agency believed that Mother may qualify for

      Social Security Disability due to her mental health issues and made a

      referral through their family support worker to help Mother. (Tr. 23). Mother

      did not contact the family support worker back. (Tr. 23).

(August 12, 2019 Decision and Final Judgment Entry at 5-6.)

      {¶ 11} Finally, with regard to the statutory best-interest factors, the trial court

analyzed them as follows:2

             Under R.C. 2151.414(D), the best interest of the child encompasses

      “all relevant factors,” including:

             (1) The interaction and interrelationship of the child with the child’s


2 Given the detailed nature of the trial court’s findings and their significance to the
outcome of Mother’s appeal, we have elected to quote the trial court’s best-interest
analysis in full.
                                                                                   -8-


parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

         The MCCS caseworker observed the children to be bonded with their

parents, and did not express any concerns with visitation. Both Mother and

[Father Two] have visited the children consistently. The GAL also noted that

the children are bonded with their parents, in addition to sharing a strong

bond with each other. The children are bonded with Mother and have

expressed to the caseworker that they would like to be returned to Mother.

(Tr. 57).

         Paternal grandmother * * * had brief contact with the children in 2017

while she resided in Ohio. [She] has continued to have some phone contact

with the children through [Father Two]. [Two of the children] reported to the

GAL that they know their paternal grandmother, and have been to her house

before. (GAL Report, Pg. 3).

         Each of the children are in a foster-to-adopt home. Each child

represented to the GAL that they are doing well in their placements, and

have received therapy services through the Agency.

         (2) 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;

         According to the GAL Report filed on November 6, 2018, [two of the

children] indicated that their first preference was to return to their parents’

care, but both were willing to go to Florida if that wasn’t possible. [The other
                                                                                  -9-


two children] indicated that they wished to return home to their parents as

their first choice. Likewise, [two of the children] have stated to the GAL that

they wish to be returned to Mother. [One of the children] also expressed

willingness to go to Florida with her siblings if necessary so that she could

remain with her siblings. The children have expressed to the caseworker

that they would like to be returned to Mother. (Tr. 57).

       (3) 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 ending on or after March 18, 1999.

       It has already been determined that the children have been in the

temporary custody of the Agency for twelve or more months of a

consecutive twenty two month period. The children were removed from their

parents’ home on October 4, 2016 and subsequently placed into foster care.

None of the children have ever returned to their parents’ care. The children

were initially all placed together in the same foster home. One child * * *

was later placed in the temporary custody of her aunt * * *. However, the

child returned to foster care in August 2017 where she has remained for the

duration of the case. The other three children have all remained together in

the same placement, though they switched homes in January 2018.

       (4) 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;
                                                                                -10-


       None of the parents have completed their case plan. [Father One]

did not have contact with the Agency and did not engage in any services. It

is apparent that [Father One] was not actively seeking reunification with his

children.

       Mother has completed various case plan objectives. She has

completed a parent[ing] class and has been consistent in her mental health

treatment. However, Mother has not had adequate housing since

September 2017. At the time of the hearing, Mother continued to reside with

[Father Two] and his aunt in a residence that was deemed inappropriate for

the children, as it is a two bedroom home without adequate space for the

children and all the adults. Mother’s employment history has been

inconsistent and unstable. Mother did not follow through with a referral for

obtaining benefits.

       [Father Two] completed various case plan objectives. However,

[Father Two] also did not have adequate housing. Although [Father Two]

completed a parenting and psychological evaluation, he failed to follow

through with the recommendations. [Father Two] was recommended to

complete a psychosexual evaluation due to the existence of multiple sexual

abuse allegations. However, [Father Two] did not complete the evaluation.

       In sum, the biggest remaining concerns are appropriate housing,

income stability, and sexual abuse allegations made against [Father Two].

At the time of the hearing, little progress was made on remedying those

concerns. The parents were still residing together with relatives. Both had
                                                                                -11-


inconsistent employment histories. [Father Two] refused to complete a

psychosexual evaluation.

       [One child] has had issues with her grades, but was improving. (Tr.

42). She has been going to a therapist through Eastway, but is starting in

the Red Zone program through her school. (Tr. 43). [Another child] receives

therapy services through NYAP. (Tr. 43). [A third child] does not have any

special needs, but sees a therapist through the school. (Tr. 44). [The fourth

child] does not have any special needs or medical needs, but also sees a

therapist. (Tr. 44).

       [One child] is in a foster to adopt placement. (Tr. 45). The agency

was looking into placing [a second child] into the same foster home * * *.

(Tr. 45). [The two other children’s] foster home in Cincinnati is a foster to

adopt home. (Tr. 46).

       Various relatives were looked at as potential placements for the

children. [One child] was temporarily placed in the custody of an aunt * * *.

However, [the aunt] expressed that she no longer wished to be the child’s

custodian. Maternal Grandmother * * * was also explored as a placement.

However, her home study did not pass, as she was residing with a paramour

whom sexual abuse allegations were indicated against. Paternal

grandmother * * * expressed interest in taking [two of the children], and

eventually all four children. On April 27, 2018, motions were filed by the

Agency for an expedited home study to be completed. However, as of the

time of the hearing, the home study had not been completed. It is uncertain
                                                                                     -12-


whether the home study was going to pass. The GAL stated that he could

not opine as to whether the placement is safe or appropriate without the

results of the home study. The GAL also stated in his report, “The

grandmother’s delay in making herself known as a possible placement

causes me concern.”

       It is also important to note that at the time the permanent custody

hearing was held, the time period for granting a second extension of

temporary custody had expired. No party filed a motion for custody to the

paternal grandmother, nor did the paternal grandmother seek intervention

to file for custody in this matter. The paternal grandmother did not appear

for the permanent custody hearing. Other than brief contact in 2017 and

some phone contact through [Father Two], it does not appear that the

paternal grandmother has had significant involvement in this matter.

Consideration of placement of the child with a relative is not a statutory

requirement. In re F.C., 2010-Ohio-3113 (2d. Dist.), P24. Courts are not

required to favor a relative if, after considering all the factors, it would be in

the child’s best interest for the agency to be granted permanent custody. In

re P.P., 2003-Ohio-1051 (2d. Dist.), P30.

       (5) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

       The Court finds that [Father One] has abandoned the children

pursuant to R.C. 2151.414(E)(10). Under Chapter 2151 of the Revised

Code, a child shall be presumed abandoned when the parents of the child
                                                                                         -13-


      have failed to visit or maintain contact with the child for more than ninety

      days. [Father One] has not had any contact with his children throughout the

      duration of this matter.

             The GAL recommended that the agency’s Motion for Permanent

      Custody be sustained as to all four children. The GAL stated in his report,

      “these children have been out of the care of their mother and [Father Two]

      for a considerable amount of time and at this time it does not appear to me

      that either parent separately or together are in a position to assume parental

      responsibility for any of these children.” After an independent review of the

      available [sic] and in consideration of the factors outline[d] in R.C. 2151.414,

      the Court finds that the State presented clear and convincing evidence that

      it is in the children’s best interest for permanent custody to be granted to

      MCCS. The objection is OVERRULED.

(August 12, 2019 Decision and Final Judgment Entry at 9-12.)

      {¶ 12} In a one-page argument, Mother asserts that returning the children to her

was in their best interest. She cites hearing testimony about the children being bonded

with her and wanting to return home. She also cites her completion of several case-plan

requirements. With regard to employment, Mother notes that she was working at the time

of the hearing. She further notes that the caseworker’s only concern about her shared

residence was that it was too small to accommodate the four children. As for concerns

about sexual abuse by Father Two, Mother stresses that the allegations were “indicated”

but not proven. She also points out that Father Two denied the allegations and refused

to undergo the required psychosexual assessment for that reason.
                                                                                         -14-


       {¶ 13} Upon review, we find Mother's first assignment of error to be unpersuasive.

The trial court appropriately considered the children’s attachment to Mother and their

wishes in its best-interest analysis. Although the children’s wishes were relevant, the trial

court was not obligated to follow them. The trial court also noted Mother’s case-plan

progress. Although Mother had completed several objectives, two major ones still caused

MCCS concern, namely stable employment and housing. As set forth above, the trial

court characterized Mother’s employment history as “inconsistent and unstable.” During

MCCS’s involvement in the case, Mother had obtained and lost several jobs. She had

started working at McDonald’s shortly before the hearing. The trial court also noted that

Mother did not follow through on a referral for potential disability benefits. With regard to

housing, the trial court noted that Mother was living with Father Two in a two-bedroom

house he shared with his aunt. The house was too small to accommodate four children,

and Mother had failed to obtain and maintain suitable housing throughout MCCS’s

involvement in the case. As for the sexual abuse allegations against Father Two, we

agree with Mother that MCCS considered them “indicated” but not proven. In any event,

MCCS did not take the position that the children absolutely could not reside with Mother

and Father Two due to the allegations. As part of Father Two’s case plan, MCCS simply

wanted him to undergo a psychosexual evaluation to help alleviate the agency’s

concerns. The fact that Father Two denied the allegations did not compel MCCS to accept

his denial at face value. Nor did his denial entitle Father Two to ignore his case-plan

requirements.

       {¶ 14} In short, the evidence presented at the permanent-custody hearing

supported the trial court’s findings and its analysis of the statutory best-interest factors.
                                                                                        -15-


The trial court’s best-interest analysis reflects that it engaged in a sound reasoning

process. The trial court acted within its discretion in finding that awarding permanent

custody to MCCS was in the best interest of Mother’s children. Accordingly, the first

assignment of error is overruled.

       {¶ 15} In her second assignment of error, Mother contends the trial court abused

its discretion in denying a continuance for a home study to be completed on the paternal

grandmother in Florida. Mother notes that the home-study delay was attributable in part

to a hurricane. Mother also suggests that two of the four children possibly could have

moved to Florida to live with the paternal grandmother if a home study were approved,

and the other two children then could have been reunited with her in the two-bedroom

residence she shared with two other adults.

       {¶ 16} Upon review, we see no abuse of discretion in the trial court’s denial of a

continuance for the home study. The record reflects that the trial court previously had

granted two continuances due to the pending Florida home study, resulting in the

permanent-custody hearing already being delayed by approximately seven months. The

third request for a continuance was untimely under the local rules, and it remained unclear

if or when the Florida home study would be completed. The trial court noted that the

children already had been in MCCS’ care for more than two years. In the course of its

ruling, the trial court additionally made the following observations:

              It is also important to note that at the time the permanent custody

       hearing was held, the time period for granting a second extension of

       temporary custody had expired. No party filed a motion for custody to the

       paternal grandmother, nor did the paternal grandmother seek intervention
                                                                                        -16-


       to file for custody in his matter. The paternal grandmother did not appear

       for the permanent custody hearing. Other than brief contact in 2017 and

       some phone contact * * *, it does not appear that the paternal grandmother

       has had significant involvement in this matter. * * *

(August 12, 2019 Decision and Final Judgment Entry at 11.)

       {¶ 17} Based on the circumstances before it, the trial court acted within its

discretion in denying a third continuance of the permanent-custody hearing. The record

persuades us that the trial court’s resolution of the issue was reasonable and not an abuse

of discretion. The second assignment of error is overruled.

       {¶ 18} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                      .............



DONOVAN, J. and WELBAUM, J., concur.


Copies sent to:

Mathias H. Heck Jr.
Lisa M. Light
Robert Alan Brenner
Candi Rambo
Jeffrey Livingston
Christopher Deal
Randall Stump, GAL
Hon. Helen Wallace
