[Cite as In re T.H., 2019-Ohio-835.]



                                       IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            WARREN COUNTY




IN THE MATTER OF:                                       :

             T.H., et al.                               :           CASE NO. CA2018-10-125
                                                                             CA2018-10-126
                                                        :
                                                                             OPINION
                                                        :                     3/11/2019

                                                        :




             APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
                               JUVENILE DIVISION
                       Case Nos. 17-D000093 and 17-D000125



David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, Ohio 45036, for appellee

Alexander, Wagner & Kinman, Jesse D. Bowman, 423 Reading Road, Mason, Ohio 45040,
for appellant



        PIPER, J.

        {¶ 1} Appellant, A.H. ("Mother"), appeals a decision of the Warren County Court of

Common Pleas, Juvenile Division, granting permanent custody of her children to appellee,

Warren County Children's Services ("the Agency").1




1. T.H.'s father is unknown. E.H.'s father, while known, could not be located. As such, neither child's father was
involved in the proceedings below and neither is participating in this appeal.
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      {¶ 2} Mother gave birth to two children, T.H. and E.H. When the children were ten

and nine years old, the Agency filed separate complaints alleging that the children were

dependent. The complaints alleged that the children's dependency was predicated upon one

child's exposure to sexual abuse by an uncle while in her maternal grandfather's care, and

Mother's drug usage while the other child was in her care.

      {¶ 3} After emergency hearings, the juvenile court granted temporary custody of the

children to the Agency. The children were later adjudicated dependent, and Mother was

assigned a case plan by the Agency with specific goals. These case plan goals included:

drug and alcohol assessments, random drug screens, mental health assessments and a

psychological evaluation. Mother was also required to obtain housing and income, and to

complete parenting classes. Mother was also to refrain from engaging in criminal activity and

cooperate with the Agency if reunification with the children was to occur. Despite Mother's

clear understanding of the case plan, she failed to complete the requirements.

      {¶ 4} The Agency moved for permanent custody of the children after Mother failed to

make adequate progress on her case plan objectives. The juvenile court held a hearing on

the Agency's motion and granted permanent custody of the children to the Agency. Mother

now appeals the juvenile court's decision, raising the following assignment of error:

      {¶ 5} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY FINDING

THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE CHILDREN

BECAUSE THIS FINDING IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      {¶ 6} Mother argues in her assignment of error that the juvenile court erred by

granting permanent custody of the children to the Agency.

      {¶ 7} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and


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convincing evidence that the statutory standards for permanent custody have been met. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11. An appellate court's

review of a juvenile court's decision granting permanent custody is generally limited to

considering whether sufficient credible evidence exists to support the juvenile court's

determination. In re M.B., 12th Dist. Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-

Ohio-5009, ¶ 6. This court will not reverse a juvenile court's decision to grant permanent

custody unless there is a sufficient conflict in the evidence presented. In re K.A., 12th Dist.

Butler No. CA2016-07-140, 2016-Ohio-7911, ¶ 10.

       {¶ 8} Even if the juvenile court's decision is supported by sufficient evidence, "an

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

of the evidence." In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.

When determining whether a juvenile court's decision is against the manifest weight of the

evidence in a permanent custody case, 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.

       {¶ 9} 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. Therefore, "[i]f the

evidence is susceptible of 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 the verdict and judgment." Eastley at ¶ 21.




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        {¶ 10} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

makes findings pursuant to a two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248,

2014-Ohio-2580, ¶ 9. First, the juvenile 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 of R.C.

2151.414(D). In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-Ohio-2896, ¶ 21.

Among others, these factors include 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, the wishes of the child, the custodial history of

the child, and the child’s need for a legally secure permanent placement.

        {¶ 11} Second, pursuant to R.C. 2151.414(B)(1)(a) thru (e), the juvenile court must

find that one of five circumstances apply to the child, such as that the child has been

abandoned, orphaned, or been in an agency's temporary custody for 12 months of a

consecutive 22-month period.2 In re C.B., 12th Dist. Clermont No. CA2015-04-033, 2015-

Ohio-3709, ¶ 10. Only one of these findings must be met to satisfy the second prong of the

two-part permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-

Ohio-3188, ¶ 12. "For purposes of [Chapter 2151], a child shall be presumed abandoned

when the parents of the child have failed to visit or maintain contact with the child for more

than ninety days, regardless of whether the parents resume contact with the child after that

period of ninety days." R.C. 2151.011(C).




2. The juvenile court also made a finding that the children could not be placed with Mother within a reasonable
time, which is also a possible finding to be considered under the statute. While the juvenile court made a proper
finding regarding this factor, the statute requires the finding of only one factor so that this court need not address
the juvenile court's alternative finding.
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       {¶ 12} After reviewing the record, we find that the juvenile court's decision to grant

permanent custody of the children to the Agency was not against the manifest weight of the

evidence and was in the best interest of the children based on the factors addressed above.

       {¶ 13} An Agency caseworker testified as to how the Agency became involved with

Mother and the children. The caseworker testified that the Agency had knowledge of

Mother's "sever[e] historical drug abuse issues, and, then also had knowledge that she did

suffer from mental health issues." The Agency was also aware that Mother did not have

stable housing or income. Based on these issues, the Agency designed a case plan to help

Mother make strides toward reunification with the children. However, Mother failed to

complete the required actions on the case plan, including a failure to complete a mental

health assessment, parenting classes, and a psychological assessment. Nor had Mother

obtained or maintained stable housing. Instead, the juvenile court considered that Mother

was living with an unidentified person in a one-bedroom apartment and that her roommate

was physically abusive, had drug problems, and was an alcoholic. Furthermore, Mother

continued her drug use, and tested positive for drugs or refused screens despite her case

plan requirement that she refrain from drug use. Mother also exposed herself to criminal

activity in violation of the case plan.

       {¶ 14} The caseworker also testified that Mother was granted supervised visitation with

the children, but such was revoked because Mother continually missed her visits. As such,

Mother had not visited the children in the 11 months prior to the hearing. Mother wrote the

children "a couple times" but did not have any contact with the children in the 90 days before

the Agency filed its motion for permanent custody of the children.

       {¶ 15} Mother also testified at the hearing and admitted that she did not "get serious"

about her drug problem until after the Agency filed its motion for permanent custody. Before


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then, for example, Mother had only completed three days of an inpatient drug rehabilitation

program before she left the program against medical advice. Mother did not deny her failure

to complete case plan requirements including her mental health assessment, psychological

evaluation, or parenting classes. During her testimony, Mother admitted to using drugs,

including cocaine, marijuana, and methamphetamines, and also acknowledged her heroin

use for the past 17 years. Mother further testified that her prolonged drug abuse caused her

to suffer congestive heart failure and five related surgeries.

       {¶ 16} Mother admitted during her testimony that her current housing situation is not

conducive to her children living with her, and further confirmed that she did not have any

income. Although Mother applied for social security disability benefits, her application was

last denied for failure to appear. Mother admitted that, at the time of the hearing, she was

not able to "be there" for the children and further admitted that her drug use had resulted in

the first child being in her grandfather's care where the child was subjected to sexual abuse.

Most recent to the hearing, Mother was also convicted for felony drug charges, and was

awaiting sentencing on her conviction.

       {¶ 17} The children's GAL submitted a report to the juvenile court recommending that

the Agency be granted permanent custody of the children.             The juvenile court also

considered how the children have been doing in foster care since the Agency was awarded

custody. The court heard evidence that the children are doing well in their placement and are

engaged in counseling. The caseworker testified that the children "enjoy" their foster home

and are "doing better" in school since the time of their placement with the Agency.

       {¶ 18} This evidence clearly establishes that Mother, as well as both children's fathers,

have abandoned the children, as none have had any contact with the children for more than

90 days. Moreover, the evidence demonstrates that granting permanent custody to the


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Agency is within the children's best interest, especially since permanent placement is their

best opportunity to be adopted and obtain stability in their lives.

       {¶ 19} Mother asserts that reunification with her children is still possible if given an

opportunity to work her case plan. We acknowledge that Mother began some of her case

plan services once the Agency filed for permanent custody.              However, Mother has

consistently failed to follow through in the past. Instead, Mother offered excuses to explain

why she was not able to complete case plan objectives, such as not having adequate

transportation or an income. However, not having certain resources did not stop Mother from

reaching out to the children through more than "a couple" of letters or stop her from having

clean drug screens. Mother's history demonstrates her voluntary choices to disregard the

means made available to her by the Agency to help her achieve her case plan goals and

work toward reunification. Mother's recent attempt to do so, however, provides no assurance

that she will follow through and achieve a stable and safe environment for the children.

       {¶ 20} Rather, Mother's argument requires this court to speculate whether she can

complete any appreciable steps towards completing her case plan or remain free from drug

usage. The juvenile court, and this court on appeal, must rely on the documented history

and the children's current condition and environment rather than anticipate future

developments when addressing the children's best interests. In re B.C., 12th Dist. Warren

Nos. CA2018-03-024 and CA2018-03-027, 2018-Ohio-2673. "The law does not require the

court to experiment with a child's welfare to see if the child will suffer great detriment or

harm." Id. at ¶ 30.

       {¶ 21} After reviewing the record, we find that the juvenile court did not err in granting

permanent custody of the children to the Agency. As such, Mother's single assignment of

error is overruled.


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{¶ 22} Judgment affirmed.


HENDRICKSON, P.J., and RINGLAND, J., concur.




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