      [Cite as State v. Hoskins, 2018-Ohio-3280.]


IN RE: G/D CHILDREN.                            :    APPEAL NOS. C-180170
                                                                 C-180179
                                                :    TRIAL NO. F06-2742Z

                                                :

                                                :          O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 17, 2018


Christopher P. Kapsal, for Appellant Mother,

Laursen & Lucas and Erik W. Laursen, for Appellant Grandmother,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Donald D. Clancy, III,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,

Roberta J. Barbanel, Guardin ad Litem, for G/D Children.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.


       {¶1}     In these consolidated appeals, mother and maternal grandmother each

appeal from the judgment of the Hamilton County Juvenile Court adopting the

magistrate’s decision and granting permanent custody of three of mother’s minor

children, D.G., H.D., and A.D. (“the children”), to the Hamilton County Department

of Job and Family Services (“HCJFS”). We affirm.

                     Abuse and Endangerment of the Children

       {¶2}     D.G., H.D., and A.D. were born in 2001, 2008, and 2009,

respectively.    In March 2013, HCJFS received an allegation of abuse and

endangerment of the children due to domestic disturbances at mother’s home.

Mother and her husband were intoxicated and were fighting while the children were

present.   Cincinnati police reported frequent contacts with the family.     HCJFS

intervened with a family safety plan, placed the children with grandmother, and

recommended intensive, outpatient substance-abuse treatment for mother.          The

children were adjudged abused and dependent, and were placed in temporary

custody of the HCJFS on April 11, 2014.

       {¶3}     HCJFS devoted substantial resources to remediating the problems

facing the children and their ability to return to the care of mother. But mother

failed to complete the court-ordered case-plan services, including therapy and

substance-abuse treatment.

       {¶4}     In early June 2016, HCJFS learned that some of the other eight

grandchildren in grandmother’s care had received significant physical injuries at the

hands of her adult son. Despite evidence of physical injuries inflicted on the other

children, grandmother and her son denied harming the children.         The children

reported being beaten by the son, and stated that they were afraid to return to

grandmother’s house. HCJFS also learned of serious allegations of sexual conduct


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                     OHIO FIRST DISTRICT COURT OF APPEALS



inflicted upon some of the other 11 minor children in grandmother’s care. HCJFS

also learned that D.G. had raped one of his eight-year-old cousins while in

grandmother’s care. In response, HCJFS immediately removed D.G., H.D., and A.D.

from grandmother’s home.

       {¶5}   A diagnostic assessment of mother prepared in July 2016 by the

Family Access to Integrated Recovery agency found that despite her earlier

participation in treatment, mother remained in need of additional substance-

abuse treatment.       It recommended that mother engage in an outpatient

substance-abuse treatment program and that she remain involved in a sobriety-

maintenance program.
                     HCJFS’s Motion for Permanent Custody

       {¶6}   In light of grandmother’s inability to protect the children from harm

and the lack of progress that mother had made on her case plan, on July 11, 2016,

HCJFS filed a motion for permanent custody of the children and permanent

termination of mother’s parental rights. Grandmother filed her own motion for legal

custody of D.G., H.D., and A.D.

       {¶7}   An evidentiary hearing was held on the two motions in April 2017.

The magistrate received testimony from the children’s HCJFS case worker, a

specialist from the Family Nurturing Center who had observed mother’s interactions

with the children during facilitated visitation, the most restrictive visitation level at

the center, a character witness for mother, and from mother herself.

       {¶8}   The case worker testified regarding the serious nature of the abuse at

grandmother’s home, that grandmother refused to accept any responsibility for the

abuse, and that grandmother was not able to protect the children. The case worker

noted that D.G., the oldest of the children, expressed his wish not to return to his

grandmother’s care. The case worker testified that mother, as she acknowledged had

not completed the 2016 substance-abuse treatment program because mother



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                      OHIO FIRST DISTRICT COURT OF APPEALS



believed that it was not necessary. Mother had also failed to appear for toxicology

screenings in 2016 and April 2017. Despite mother’s unsubstantiated contention

that she was unable to make the screenings because of work commitments, the case

worker testified that mother had failed to respond at all to his communications to

appear for testing.

       {¶9}   The case worker also testified to HCJFS’s inability to inspect the safety

and suitability of mother’s various dwellings as proposed homes for the children

were she to regain custody. Mother refused to identify for the case worker which unit

she sublet in an apartment complex.        When mother was forced to leave the

apartment because the tenant was evicted, she moved to a hotel where she resided at

the time of the hearing.

       {¶10} Mother testified that she no longer drank alcohol, that she did not feel

it necessary to complete substance-abuse treatment as she had already had

treatment in the past, and that the treatment interfered with her work schedule. She

maintained that she had not been in contact with her husband for over two years,

although the marriage had not been terminated by divorce, and that she had

interacted well with the children during supervised visits. She also claimed to have

leased an apartment for the family, but acknowledged that it was not yet ready for

occupancy and was unable to specify when it would be ready.

       {¶11} Grandmother did not appear at the hearing. Her counsel was present

and argued that as grandmother had been found to be an appropriate custodian in

the past and as HCJFS had returned one of her older grandchildren to her care, she

was a proper custodian for the children. The children’s guardian ad litem also

participated in the hearings, and agreed with HCJFS that it was in the best interests

of the children for them to be placed in the permanent custody of HCJFS.

       {¶12} On November 28, 2016, the magistrate issued a detailed written

decision   granting   HCJFS’s   motion    for   permanent     custody   and   denying



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                     OHIO FIRST DISTRICT COURT OF APPEALS



grandmother’s motion for legal custody of the children. It was undisputed that

neither of the two fathers played any role in the lives of the children. The magistrate

then found that clear and convincing evidence established that the children could not

and should not be placed with mother within a reasonable time, and that their return

to mother’s home would be contrary to be their best interests and welfare. The

magistrate noted that mother had failed to remedy the conditions that had prompted

the children’s removal from her home, and that her alcohol dependence made her

unable to provide an adequate home for the children.

       {¶13} The magistrate also found that the children had been in the temporary

custody of HCJFS for 12 or more months of a consecutive 22-month period. When

HCJFS moved for permanent custody, they had been in temporary custody over 27

consecutive months. In light of these findings, the magistrate determined that it was

in the best interests of the children to grant HCJFS’s motion for permanent custody.

The magistrate also denied grandmother’s motion for legal custody, noting her

inability to protect the children from harm.

       {¶14} Mother filed a one-paragraph objection to the magistrate’s decision.

Grandmother also filed an objection alleging that, in reaching his decision, the

magistrate had improperly weighed the facts. At the objections hearing, the juvenile

court entertained the arguments of counsel but heard no new evidence.            After

reviewing the record, including a transcript of the proceedings before the magistrate,

the juvenile court overruled the objections, adopted the magistrate’s decision, and

entered judgment granting HCJFS’s motion for permanent custody and denying

grandmother’s motion for legal custody. Both mother and grandmother appealed.

                     Mother’s Appeal of Permanent Custody

       {¶15} In her sole assignment of error, mother challenges the weight and the

sufficiency of the evidence adduced to support the juvenile court’s decision to award

permanent custody to HCJFS.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Parents who are suitable persons have a paramount right to the

custody of their minor children. In re Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d

1047 (1977); see In re Bailey, 1st Dist. Hamilton No. C-040014, 2005-Ohio-3039, ¶

13.   But the fundamental interest of a parent “is not absolute.” In a custody

determination, “the best interest of the child controls.” In re D.A., 113 Ohio St.3d 88,

2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.

       {¶17} R.C. 2151.414 governs the procedures that apply when, as here, a

children-services agency has moved for permanent custody under R.C. 2151.413. The

version of R.C. 2151.414 in effect when HCJFS moved for permanent custody

provided that before a juvenile court may terminate parental rights and place

children in the permanent custody of a children-services agency, it must determine

by clear and convincing evidence (1) that one or more of the conditions listed in R.C.

2151.414(B)(1) apply, and (2) that it is in the best interest of the children to grant

permanent custody to the agency by considering the factors in R.C. 2151.414(D) and

(E) with respect to each child. See former R.C. 2151.414; see also In re A.B., 1st Dist.

Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 13; In re C.L., 1st Dist.

Hamilton No. C-170169, 2017-Ohio-7184, ¶ 18.

       {¶18} Here, we cannot say that the juvenile court clearly lost its way and
created a manifest miscarriage of justice when evaluating the evidence. See In re

A.B. at ¶ 16. Mother had admitted that she failed to complete the substance-abuse

treatment specified in the 2016 diagnostic assessment, failed to submit to toxicology

screenings, and failed to complete other parts of the case plan. Despite the efforts of

a nurturing coach, mother had not been able to advance beyond the most restrictive

level of supervised visitation with the children. And this record does not reflect that

mother was able to provide stable housing for the children.

       {¶19} While mother had taken some steps toward remedying the problems

that had led to removal of the children, even substantial completion of a case plan



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                     OHIO FIRST DISTRICT COURT OF APPEALS



does not, in and of itself, require that children be reunified with a parent who has

failed to remedy the conditions which led to removal in the first place. See In re I.K.,

1st Dist. Hamilton No. C-150667, 2016-Ohio-659, ¶ 14.

       {¶20} After reviewing the record, we hold that the juvenile court’s

determinations are amply supported by the evidence. It is undisputed that the

condition set forth in R.C. 2151.414(B)(1)(d) was met as the children had been in the

temporary custody of HCJFS for 12 or more months of a consecutive 22-month

period. While the court was not required to make the further finding that the

children could not or should not be placed with either parent, it nonetheless did so.

Since the fathers had not participated in reunification services and the record

reflected mother’s failure to remedy the conditions that had prompted the children’s

removal, the court’s determination was amply supported by the record . See former

R.C. 2151.414(B); see also In re A.B., 1st Dist. Hamilton Nos. C-150307 and C-

150310, 2015-Ohio-3247, at ¶ 30-31.

       {¶21} We also conclude that the juvenile court did not lose its way in making

a best-interests determination under former R.C. 2151.414(D) and (E).               The

magistrate and the juvenile court examined each factor as it related to the children.

The children had been in agency care for nearly three years.            Mother had not

progressed beyond supervised visitation with them, had not remedied the chemical

dependency issues that prompted the children’s removal, and had not demonstrated

an ability to provide the children with long-term stability. The guardian ad litem

urged an award of permanent custody to HCJFS. Despite grandmother’s motion for

legal custody of the children, the finding that grandmother could not protect the

children from abuse supported the conclusion that there were no other relatives

suitable to care for the children. See former R.C. 2151.414(D)(2)(d).

       {¶22} Based on this record, the juvenile court’s determination that it was in

the children’s best interest to terminate mother’s parental rights so as to facilitate a



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                     OHIO FIRST DISTRICT COURT OF APPEALS



secure and stable placement was amply supported by clear and convincing evidence

and was not against the weight of the evidence. See In re A.B. at ¶ 28.

       {¶23} Moreover, the record reflects substantial, credible evidence on the

elements of HCJFS’s motion for permanent custody. Therefore, the juvenile court

could have reasonably concluded that HCJFS had carried its burden and the award

of custody to HCJFS was supported by sufficient evidence.         See id. at ¶ 14-15.

Mother’s assignment of error is overruled.

                    Grandmother’s Motion for Legal Custody

       {¶24} In her single assignment of error, grandmother maintains that the

juvenile court erred in denying her motion for legal custody. The gravamen of her

argument on appeal is that once mother’s custody rights had been permanently

terminated, the court should have granted legal custody of the children to her.

       {¶25} After a child is adjudicated abused, neglected, or dependent, the trial

court may award legal custody of the child to “any other person,” who, like

grandmother here, has filed a motion requesting legal custody of the child. See

former R.C. 2151.353(A); see also former R.C. 2151.414(D)(2)(d). When determining

to whom legal custody should be awarded, the juvenile court should base its

determination on the best interest of the child. The factors found in R.C. 2151.414

are a useful framework for the court’s best-interest determination. See In re A.C., 1st

Dist. Hamilton No. C-140273, 2015-Ohio-153, ¶ 5-6. We will not reverse the juvenile

court’s award of custody absent an abuse of its broad discretion. See id. at ¶ 6. An

abuse of discretion is more than an error of law or judgment; it is a decision that is

unreasonable, arbitrary, or unconscionable. See id.; see also In re D.M., 1st Dist.

Hamilton No. C-140648, 2015-Ohio-3853, ¶ 11.

       {¶26} Here, grandmother argued that because she had played a significant

role in the children’s lives, and because HCJFS had returned one of 11 of her

grandchildren to her care, she was a suitable custodian for the children. But in their



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                     OHIO FIRST DISTRICT COURT OF APPEALS



analysis of the best-interest factors, the magistrate and the juvenile court found that

grandmother’s home was not a viable placement option for the children.

Grandmother continued to deny the substantial medical and testimonial evidence

that physical and sexual abuse had taken place in her home. In earlier testimony

before the magistrate, she admitted that she had no safety plan in place to prevent

subsequent abuse if the children were to be returned to her care.

       {¶27} In light of these facts, we cannot say that the juvenile court abused its

discretion in reaching its well-supported decision denying grandmother’s motion

seeking legal custody. See In re A.C. at ¶ 6. Grandmother’s assignment of error is

overruled.

       {¶28} Therefore, the judgment of the juvenile court is affirmed.
                                                                     Judgment affirmed.



MOCK, P.J., and MILLER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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