[Cite as In re T.P., 2018-Ohio-1330.]


                                        IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                        ASHTABULA COUNTY, OHIO


 IN THE MATTER OF:                                  :      OPINION
 T.P., M.S., AND C.W.,
 DEPENDENT CHILDREN                                 :

                                                    :      CASE NOS. 2018-A-0001
                                                                     2018-A-0002
                                                    :                2018-A-0003


 Civil Appeals from the Ashtabula County Court of Common Pleas, Juvenile Division.
 Case Nos. 2016 JC 00052, 2016 JC 00053, and 2016 JC 00054.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047-1092; Margaret A. Draper,
 Assistant Prosecutor ACCSB, 3914 C Court, Ashtabula, OH 44004 (For Appellee
 Ashtabula County Children Services Board).

 Michael A. Hiener, P.O. Box 1, Jefferson, OH 44047 (For Appellant Mariah Phillips).

 Eileen Noon Miller, Law Offices of Eileen Noon Miller, LLC, P.O. Box 1681, Mentor, OH
 44060 (Guardian ad litem).



TIMOTHY P. CANNON, J.

        {¶1}     Appellant, Mariah Phillips, appeals from the December 8, 2017 judgment of

the Ashtabula County Court of Common Pleas, Juvenile Division, terminating appellant’s

parental rights and granting permanent custody of her children to appellee, Ashtabula

County Children Services Board (“ACCSB”). This matter concerns the consolidated

cases of appellant’s three children: M.S., born April 27, 2012; T.P., born August 28, 2013;
and C.W., born August 26, 2015. Matthew Stecki (father of M.S. and T.P.) and Kevonta

Wilson (father of C.W.), were also permanently divested of their parental rights but have

not appealed the trial court’s judgment. At issue is whether the trial court’s determination

that permanent custody is in the best interests of the children is supported by clear and

convincing evidence. For the reasons that follow, the judgment is affirmed.

        {¶2}   In a previous matter, Ashtabula County case No. 2014 JC 0041, M.S. and

T.P. were placed in the temporary custody of ACCSB on July 11, 2014. The children

were returned to appellant, subject to protective supervision, on July 6, 2015. C.W. was

born prematurely the following month, at 28 weeks. The case was closed in January

2016.

        {¶3}   The following month, on February 12, 2016, all three children were placed

in the emergency temporary custody of ACCSB, upon the ex parte finding of probable

cause to believe that the children were in immediate danger from their surroundings, they

were in danger of immediate or threatened physical or emotional harm, and removal was

necessary to prevent immediate or threatened physical or emotional harm. ACCSB filed

complaints for temporary custody on February 16, 2016, alleging neglect due to

appellant’s heroin use while caring for the children.

        {¶4}   An adjudicatory hearing was held on March 14, 2016. The complaints were

amended from an allegation of neglect to dependency. Appellant stipulated she needed

drug treatment and was entering residential treatment that day. She further stipulated

that both fathers were currently incarcerated. On April 5, 2016, the trial court approved

and adopted the magistrate’s decision, finding the children were dependent.




                                             2
      {¶5}   At the disposition hearing on April 11, 2016, the magistrate found C.W. had

extreme special needs, and the needs of all the children were being met in foster care.

The magistrate determined ACCSB had made reasonable efforts to prevent the need for

placement and to make it possible for the children to return home. The magistrate further

found appellant had left residential treatment after eighteen days, appellant’s

whereabouts were unknown, and both fathers remained incarcerated. The trial court

approved and adopted the magistrate’s decision on April 28, 2016. The children therefore

remained in the temporary custody of ACCSB, and a case plan was adopted.

      {¶6}   As of the semi-annual review hearing held on August 10, 2016, appellant’s

whereabouts remained unknown and Mr. Stecki remained incarcerated. Mr. Wilson had

been released from incarceration but lacked employment and his housing was unstable;

he identified an unnamed aunt in Allegheny County, Pennsylvania as a possible

placement for the children. The children continued to have their needs met while in foster

care and remained in the temporary custody of ACCSB.

      {¶7}   On January 11, 2017, ACCSB filed a motion requesting modification of

temporary custody to permanent custody.

      {¶8}   An annual review hearing was held on February 9, 2017.           Appellant’s

whereabouts continued to be unknown, and Mr. Stecki remained incarcerated. Mr.

Wilson had last seen C.W. over a year prior, on January 29, 2016. Mr. Wilson stated he

was employed and was residing with his girlfriend when not travelling for work. He named

his aunt in Pennsylvania, Adrianne Foster, and stated she may be interested in caring for

C.W. The children continued to have their needs met while in foster care and remained

in the temporary custody of ACCSB pending the permanent custody hearing.




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       {¶9}   The hearing on the permanent custody motion commenced on August 30,

2017. All three parents were incarcerated at the time of the hearing, but they were all in

attendance. ACCSB presented the testimony of two caseworkers, Sarah Branham and

Christy Lalli. The caseworkers testified that appellant did not in any way comply with her

case plan. Appellant visited the children sporadically during the months of April, May,

and June 2016. The last time she visited the children was on July 25, 2016. Her

visitations were cancelled after a period of no-shows, and she did not request to have

them reinstated.

       {¶10} Ms. Branham testified that Mr. Wilson met with her once in September 2016

and completed a drug screen. After that, the caseworkers testified, he did not meet any

case plan objectives and never provided ACCSB with his residential address or proof of

income. The last time Mr. Wilson saw C.W. was on January 29, 2016, prior to her removal

from the home; he did not visit C.W. during the time she was in the temporary custody of

ACCSB. Ms. Lalli testified that she requested to meet with Mr. Wilson after the semi-

annual review hearing, but he did not comply.

       {¶11} Mr. Stecki did not have any contact with the agency while Ms. Branham was

assigned to the case. Ms. Lalli testified that, after she took over, Mr. Stecki contacted the

agency by letter dated February 21, 2017, which included drawings and letters for M.S.

and T.P. He also contacted the agency by phone after he was served with the permanent

custody motion and indicated he was attending parenting classes in prison and wanted

to maintain his parental rights. Mr. Stecki has been incarcerated on charges related to

felony illegal manufacturing of drugs since October 2013 when T.P. was two months old




                                             4
and M.S. was one and one-half years old. He is not scheduled to be released from prison

until December 2019.

       {¶12} Testimony was also elicited from Ms. Lalli regarding the needs and best

interests of the children. M.S. is in kindergarten and receives counseling for mental health

issues.   T.P. is doing well in preschool.       C.W. has extreme special needs, due to

complications from her premature birth, including cognitive disabilities, developmental

delays, asthma, and cerebral palsy. She takes albuterol, receives yearly neurological

examinations, wears leg braces, receives occupational therapy on a weekly basis, and

requires constant supervision because of mobility issues. She will also need speech

therapy in the future. Ms. Lalli testified the children are all bonded to each other and

should not be separated for placement. The foster parents are interested in adopting the

children, and Ms. Lalli has no concerns about the children’s care with the foster family.

The home has four bedrooms, a large yard, and many toys. C.W. sleeps in a crib and

the older children share bunk beds.

       {¶13} Ms. Lalli testified that Mrs. Foster, Mr. Wilson’s aunt, first contacted her as

a possible placement for C.W. in April 2017, after the permanent custody motion had

been filed.   Ms. Lalli worked with Mrs. Foster, who is a licensed foster parent in

Pennsylvania, concerning the interstate proceedings. Over the next few months, Ms. Lalli

repeatedly requested Mrs. Foster’s licensure and a copy of a Home Study; she gave Mrs.

Foster a fax number where her caseworker could submit the documents. Ms. Lalli did not

receive the requested documents from Mrs. Foster until the day of the permanent custody

hearing. She also testified that Mrs. Foster could still be considered as an adoptive

placement for the children if the agency was granted permanent custody.




                                             5
      {¶14} Mrs. Foster also testified.      Mrs. Foster lives in Pennsylvania and has

custody of, and is in the process of adopting, Mr. Wilson’s 13-year-old child, who was

introduced to C.W. in Spring 2017. Mrs. Foster also introduced C.W. to another of Mr.

Wilson’s children, who lives with a custodian in Ashtabula, Ohio. Mr. Wilson has several

children, none of whom are in his custody.

      {¶15} Mrs. Foster testified that Mr. Wilson contacted her in September 2016 about

C.W.’s removal but that ACCSB told her they were trying to keep the children together

and return them to the home at that time. Mrs. Foster testified the agency told her she

would be considered for placement if things changed. She stated she next contacted

ACCSB in February 2017 and multiple times during March 2017, after she learned of the

permanent custody motion, and informed ACCSB of her willingness to adopt C.W. Mrs.

Foster testified she had not made any efforts at contact in the meantime because she

thought the agency was still working towards reunification.

      {¶16} Mrs. Foster further testified that Ms. Lalli requested a copy of her licensure,

which they do not have in Pennsylvania; she sent a cell phone picture of her certificate to

Ms. Lalli via e-mail and was told that was insufficient. She provided contact information

for her Pennsylvania case workers and signed release forms so they could speak to

ACCSB. Mrs. Foster stated her Home Study was not completed until three weeks prior

to the hearing.   She also testified she was not aware she needed to file a motion

requesting legal custody or a motion to intervene.

      {¶17} Mrs. Foster testified that, if necessary and if in C.W.’s best interest, she

would provide a home for all three children, but that she would prefer to receive placement

only of C.W. She would also prefer to adopt, as opposed to receiving legal custody. Mrs.




                                             6
Foster stated she has experience caring for children with disabilities, both as a family

member and as a home healthcare provider.

       {¶18} The guardian ad litem submitted her report and recommended that the best

interests of the children is to grant permanent custody to ACCSB so they can receive a

legally secure placement with the foster family.

       {¶19} On December 8, 2017, the trial court issued findings of fact and conclusions

of law. The trial court granted ACCSB’s motion for permanent custody of the three

children and terminated the parental rights of appellant, Mr. Stecki, and Mr. Wilson.

       {¶20} Appellant filed a timely notice of appeal and asserts two assignments of

error for our review:

              [1.] The trial court erred when it determined permanent custody was
              in the best interest of the minor children without considering R.C.
              2151.414(D)(2)(d) when a family member sought custody of the
              minor children.

              [2.] The trial court’s decision is against the manifest weight of the
              evidence.

       {¶21} The trial court must apply a two-pronged analysis when ruling on a motion

for permanent custody. Pursuant to R.C. 2151.414(B)(1), the court may grant permanent

custody only if the court determines at the hearing, by clear and convincing evidence, that

it is in the best interest of the child to do so and that one of the following factors applies:

              (a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as described in division
              (D)(1) of section 2151.413 of the Revised Code, the child was
              previously in the temporary custody of an equivalent agency in
              another state, and the child cannot be placed with either of the child’s



                                               7
              parents within a reasonable time or should not be placed with the
              child's parents.

              (b) The child is abandoned.

              (c) The child is orphaned, and there are no relatives of the child who
              are able to take permanent custody.

              (d) 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, or
              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
              and, as described in division (D)(1) of section 2151.413 of the
              Revised Code, the child was previously in the temporary custody of
              an equivalent agency in another state.

              (e) The child or another child in the custody of the parent or parents
              from whose custody the child has been removed has been
              adjudicated an abused, neglected, or dependent child on three
              separate occasions by any court in this state or another state.

       {¶22} The trial court determined (B)(1)(b) applies because there was clear and

convincing evidence that all three children had been abandoned. It further determined

there was clear and convincing evidence that (B)(1)(d) applies to M.S. and T.P., who had

been in the temporary custody of ACCSB for 12 months of a consecutive 22-month

period. Alternatively, the trial court determined there was clear and convincing evidence

that the children cannot be placed with any parent within a reasonable time and should

not be placed with any parent. Therefore, assuming (B)(1)(b) and (d) did not apply for

any reason, (B)(1)(a) also applies to all three children.

       {¶23} The trial court then engaged in the best interest analysis and found, by clear

and convincing evidence, that it is in the best interests of the children to grant permanent

custody to ACCSB.




                                             8
       {¶24} Appellant’s assignments of error on appeal solely relate to the trial court’s

best interest determination.

       {¶25} Under her first assignment of error, appellant argues that Mrs. Foster,

C.W.’s paternal aunt, made a sufficient request for custody under R.C. 2151.414(D)(2)(d)

to prevent a finding that permanent custody was in the best interests of the children.

Appellee responds that Mrs. Foster did not comply with the custody process, therefore

the trial court did not err in finding permanent custody was in the best interests of the

children.

       {¶26} R.C. 2151.414(D)(2) provides that, “[i]f all of the following apply, permanent

custody is in the best interest of the child, and the court shall commit the child to the

permanent custody of a public children services agency or private child placing agency:

             (a) The court determines by clear and convincing evidence that one
             or more of the factors in division (E) of this section exist and the child
             cannot be placed with one of the child’s parents within a reasonable
             time or should not be placed with either parent.

             (b) The child has been in an agency’s custody for two years or longer,
             and no longer qualifies for temporary custody pursuant to division (D)
             of section 2151.415 of the Revised Code.

             (c) The child does not meet the requirements for a planned
             permanent living arrangement pursuant to division (A)(5) of section
             2151.353 of the Revised Code.

             (d) Prior to the dispositional hearing, no relative or other interested
             person has filed, or has been identified in, a motion for legal custody
             of the child.

       {¶27} Even if Mrs. Foster had made a sufficient request for custody under

subsection (d), the trial court could not have relied on R.C. 2151.414(D)(2) for the best

interest determination, because subsection (b) was not satisfied: the children had not

been in the custody of ACCSB for two years or longer. Further, “R.C. 2151.414(D)(2)



                                             9
applies only as an alternative basis for the trial court to determine that the termination of

parental rights is in the best interest of the children.” In re B.R.C., 11th Dist. Portage Nos.

2013-P-0059 & 2013-P-0060, 2014-Ohio-69, ¶57, citing In re J.B., 8th Dist. Cuyahoga

No. 97995, 2012-Ohio-3087, ¶22, fn.2 and In re M.K., 10th Dist. Franklin Nos. 09AP-1141

& 09AP-1142, 2010-Ohio-2194, ¶22. When there are sufficient grounds under the factor

analysis found in R.C. 2151.414(D)(1), as outlined below, the trial court need not resort

to R.C. 2151.414(D)(2) to determine whether permanent custody is in the children’s best

interests. Id.

       {¶28} Here, the trial court determined that granting permanent custody was in the

best interests of the children based on findings made under R.C. 2151.414(D)(1).

Therefore, assuming these findings are supported by clear and convincing evidence, the

trial court was not required to determine whether Mrs. Foster made a sufficient request

for custody under R.C. 2151.414(D)(2)(d) to prevent a finding that permanent custody

was in the best interests of the children.

       {¶29} R.C. 2151.414(D)(1) provides that, in determining the best interest of a child

at a permanent custody hearing, “the court shall consider all relevant factors, including,

but not limited to, the following:

                 (a) The interaction and interrelationship of the child with the child’s
                 parents, siblings, relatives, foster caregivers and out-of-home
                 providers, and any other person who may significantly affect the
                 child;

                 (b) The wishes of the child, as expressed directly by the child or
                 through the child’s guardian ad litem, with due regard for the maturity
                 of the child;

                 (c) The custodial history of the child, including whether the child has
                 been in the temporary custody of one or more public children
                 services agencies or private child placing agencies for twelve or



                                               10
              more months of a consecutive twenty-two-month period, or 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 and, as
              described in division (D)(1) of section 2151.413 of the Revised Code,
              the child was previously in the temporary custody of an equivalent
              agency in another state;

              (d) The child’s need for a legally secure permanent placement and
              whether that type of placement can be achieved without a grant of
              permanent custody to the agency;

              (e) Whether any of the factors in divisions (E)(7) to (11) of this section
              apply in relation to the parents and child.

       {¶30} We review the trial court’s R.C. 2151.414(D)(1) findings under appellant’s

second assignment of error.        Appellant argues the trial court’s determination that

permanent custody was in the best interests of the children was not supported by clear

and convincing evidence, as required under R.C. 2151.414(B)(1), and is therefore against

the manifest weight of the evidence.

       {¶31} 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 certainty as is required “beyond a reasonable

doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm

belief or conviction as to the facts sought to be established.’” In re K.H., 119 Ohio St.3d

538, 2008-Ohio-4825, ¶42, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus.

       {¶32} “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



                                             11
reversed and a new trial ordered.’” In re H.J., 11th Dist. Ashtabula No. 2017-A-0068,

2018-Ohio-206, ¶16, quoting Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179,

¶20. “In weighing the evidence, the court of appeals must always be mindful of the

presumption in favor of the finder of fact.” Eastley, supra, at ¶21.

       {¶33} The trial court analyzed the evidence as it pertained to each of the relevant

factors under R.C. 2151.414(D)(1) in determining the best interests of the children.

       {¶34} The trial court first considered “[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,” pursuant to

(D)(1)(a). It determined appellant had not interacted with the children since July 2016;

Mr. Stecki has had no relationship with M.S. and T.P. since February 2016; and Mr.

Wilson last saw C.W. in January 2016. There is no evidence of any bond remaining

between appellant and the children; there is no evidence of any bond between C.W. and

Mr. Wilson; and M.S. and T.P. exhibited fear when Mr. Stecki last contacted them with

letters by mail, which may be due to a lack of memory of him.

       {¶35} The trial court considered Mrs. Foster, C.W.’s aunt, as the only identified

relative with an interest in any of the children. In that regard, the court found Mrs. Foster

had only ever seen C.W. once, and there is no evidence of any relationship between the

two of them or between C.W. and Mr. Wilson’s many other children, none of whom are in

his custody.

       {¶36} The trial court further determined the following:

               The children are placed together in a certified foster home where
               they have been since their removal on February 12, 2016. The
               children reside with the foster father and foster mother and the four
               biological children of the foster parents. The children interact as



                                             12
             siblings with the four other children in the home, and act towards one
             another in such a way that there is no observable difference between
             the interaction or treatment of the biological children and foster
             children. The three children are bonded to each other, and the
             caseworker did not recommend separating the siblings from one
             another. The two older children as well as the foster siblings are
             protective of [C.W.], which may be heightened due to her special
             needs.

      {¶37} With regard to (D)(1)(b), “the wishes of the child” factor, the trial court stated

that no party had requested an in camera interview of the children, no such hearing was

conducted, and the wishes of the children had been communicated to the court by the

guardian ad litem. The court determined:

             Although the children are of tender years and are limited as to
             maturity, the Guardian ad litem recommended that Permanent
             Custody be granted as being the children’s best interest and made
             that recommendation on their behalf. Even assuming [M.S.] at the
             age of 5 has sufficient maturity to express his wishes, he has clearly
             done so in that he has communicated his desire to be adopted and
             to have the same last name of the foster family as the only stable
             home in which he has resided.

      {¶38} Next, the trial court considered the “custodial history of the child,” pursuant

to (D)(1)(c). M.S. and T.P. had been in the temporary custody of ACCSB for over 12

months of 22 consecutive months and had been removed twice from appellant’s care. All

three children had resided in the same foster home since their removal in February 2016.

      {¶39} The trial court next considered the children’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,” pursuant to (D)(1)(d). The court stated: “As

reflected in the Guardian ad litem’s report and evidence presented, the children need a

legally secure placement and such a legally secure placement cannot be achieved

without a grant of permanent custody to the agency. The children’s foster home has




                                            13
expressed an interest in adopting the children.” The trial court additionally acknowledged

that, “although her interest was expressed late in the process, as of the date of the

Permanent Custody hearings, Mrs. Foster was expressing her desire to be considered as

an adoptive placement for [C.W.]. As of the date of her testimony, Mrs. Foster was stating

an interest in maintaining the three siblings together, although she had never met the

older two children.” The trial court concluded there was clear and convincing evidence

that a legally secure permanent placement of the children cannot be achieved without a

grant of permanent custody to ACCSB.

      {¶40} Finally, pursuant to (D)(1)(e), the trial court considered the relevant factors

listed in R.C. 2151.414(E). There was no evidence presented with regard to the factors

listed in R.C. 2151.414(E)(7), (8), (9), or (11). There was, however, clear and convincing

evidence to support a finding that the children were abandoned by their parents, as

provided in R.C. 2151.414(E)(10). “[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).

      {¶41} Appellant failed to maintain contact with the children after July 25, 2016,

and failed to make any attempt to resume contact thereafter. Mr. Stecki’s last visit with

M.S. and T.P. occurred prior to their February 12, 2016 removal, and there was no contact

thereafter until he sent them a letter and drawings. The date of the letter is unclear, but

the evidence established it occurred after the motion for permanent custody was filed on

January 11, 2017. Mr. Wilson’s last contact with C.W. occurred on January 29, 2016,

which was also prior to her removal, and he failed to seek any visitation or make any other




                                            14
efforts to see C.W. Based on these facts, the trial court determined each of the parents

had failed to maintain contact with their children for a period of 90 days or more, and,

therefore, the children were abandoned.

       {¶42} The trial court’s decision is not against the manifest weight of the evidence.

The record, which includes the transcript of the permanent custody hearing, supports the

trial court’s determination, by clear and convincing evidence, that it is in the best interests

of M.S., T.P., and C.W. to be placed in the permanent custody of ACCSB.

       {¶43} Appellant’s first and second assignments of error are without merit.

       {¶44} The judgment of the Ashtabula County Court of Common Pleas, Juvenile

Division, is affirmed.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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