[Cite as In re M.N. , 2021-Ohio-4042.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE D ISTRICT OF OHIO

FAYETTE COUNTY

IN RE: M.N., et al. :

:

:

:

: CASE NO. CA2021-07-015

O P I N I O N

11/15/2021

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. AND20190694; AND20190695; AND20190696

Jess C. Weade, Fayette County Prosecuting Attorney, and Rachel S. Martin, Assistant Prosecuting Attorney, for appellee. Steven H. Eckstein, for appellant. Susan R. Wollsheid, for mother.

M. POWELL, P.J. {¶ 1} Appellant, the biological father of M.G. ("Father"), appeals fr om a decision of the Fayette County Court of Common Pleas, Juvenile Division, gr anting permanent custody of his child to appellee, Fayette County Children Services ("FC CS"). For the reasons outlined below, we affirm the juvenile court's decision.Fayette CA2021-07-015

- 2 - {¶ 2} On November 19, 2019, M.G.'s mother ("Mother") took her three-y ear-old stepdaughter ("L.G.") to Nationwide Children's Hospital due to injuries the child sustained

while in Mother and Father's care. The record reflects that L. G. had bruising on her neck, face, head, and behind her ears. Both of her eyes were swollen shut. L.G. also had a torn perineal. Following their examination, medical staff determine d that L.G.'s injuries were non-accidental and reported the matter to authorities. {¶ 3} When L.G.'s mother learned that L.G. was in the hospital, she i mmediately went to pick up her other child, one-year-old ("A.G."), who had also been staying with

Mother and Father. A.G. was later taken to Nationwide as well for a swollen and bruised right eye. He also had bite marks and bruises on his body. L. G. and A.G. were both

admitted to Nationwide for further treatment. {¶ 4} Because of the injuries, Nationwide ordered Mother to pick up h er three biological children and return to the hospital immediately so t hey could be examined. FCCS responded to Mother's home along with law enforcement. At the house were six to eight adults, including a maternal great aunt, two teenagers, and thr ee minor children: four-yearold M.N., two-year-old J.N., and one-month old M.G. None of th e adults offered an explanation for how L.G. and A.G. had sustained their injuries. The caseworker inquired when M.G. had last been fed. Initially, nobody knew the answer . When the caseworker gave M.G. a bottle he "gulped" it down. {¶ 5} On November 20, 2019, FCCS filed a complaint alleging that M.N. , J.N., and M.G. were dependent and requesting emergency temporary custody. The juvenile court granted the order for temporary custody and the children were p laced together in foster

care. {¶ 6} After M.N. began exhibiting aggressive behaviors, all three chi ldren were removed from their foster placement. The children were then pl aced in a second fosterFayette CA2021-07-015

- 3 - home in December 2019. Because M. N. continued to display aggre ssion against J.N. and M.G., FCCS decided to place M.N. in a separate foster home. J. N. and M.G. have remained in this second foster placement throughout the pendency of this case. {¶ 7} Meanwhile, Mother and Father were indicted on felony charges fo r child abuse. Father pled guilty to endangering children and was sent enced to 36 months in prison. Mother pled guilty to felonious assault and was senten ced to an indefinite prison term of four-to-six years. {¶ 8} On February 18, 2020, the juvenile court held an adjudicatory h earing. During the hearing, the parties stipulated that the children were depe ndent children pursuant to R.C. 2151.04(C). Therefore, the juvenile court adjudicated M.N ., J.N., and M.G. as dependent children. The juvenile court held a dispositional he aring on March 3, 2010. Following the hearing, the juvenile court found it was in the b est interest of the children to remain in the temporary custody of FCCS. {¶ 9} While in the temporary custody of FCCS, M.N. and J.N. have rece ived care for their substantial special needs. At the time of removal, f our-year-old M.N. had behavioral and aggression issues, and a severe attention disorder. She wa s not potty-trained and was unable to use utensils when eating. Two-year-old J.N. was stil l drinking from bottles and was nonverbal. Both M.N. and J.N. have progressed since their placement in foster care. M.G., who was only one month old at the time of removal, exceed ed his milestones while in foster care. M.G. is currently walking, talking, and eating . He is also well-bonded with his foster family. {¶ 10} Due to incarceration, Mother and Father have not made any conse quential progress toward completing their case plan goals. M.N. and J.N .'s father has had little involvement in this case. He did have a home study completed b ut failed due to the deplorable condition of his home, which reportedly had bug infe stations, environmentalFayette CA2021-07-015

- 4 - hazards and a wood burning barrel as the sole source of heat. {¶ 11} On February 5, 2020, the children's maternal great aunt ("Aunt" ), filed a motion for custody which was denied after a September 15, 2020, hearing. Aunt renewed her request for legal custody in a second motion filed on Febru ary 3, 2021. On February 11, 2021, FCCS moved for permanent custody of the children. Th e juvenile court held a hearing on both motions on May 7, 2021. {¶ 12} During its case-in-chief, the state presented evidence from an FCCS caseworker and the children's guardian ad litem ("GAL"). The c aseworker testified about the special needs of the two older children, M.N. and J.N., and that they had progressed in their foster care placements. M.N. has weekly counseling sessi ons and weekly speech therapy sessions. J.N. is still nonverbal but has started usin g very limited sign language. M.G., at 18-months old, continued to exceed his milestones. {¶ 13} The state presented evidence concerning the case plans for Moth er, Father,

and for M.N. and J.N.'s father. The caseworker testified that Aunt and her husband were not considered for placement because they were residing at the home from which the

children were removed. The caseworker also testified that Aunt is unemployed and has no income while her husband is working for Door Dash. Though the Aunt and her husband had recently moved to a new address, the agency expressed conce rns about their ability to maintain that residence. The GAL also reported concerns that t he Aunt did not have an approved home study. The Aunt and her husband purchased beds f or the children and a highchair for M.G. but had little else to meet the children's n eeds. {¶ 14} After taking the matter under advisement, the juvenile court gr anted FCCS's motion for permanent custody and denied Aunt's motion for legal custody. In so doing, the juvenile court determined that M.N., J.N., and M.G. had been in the temporary custody of the agency for at least 12 months of a consecutive 22-month per iod. The juvenile courtFayette CA2021-07-015

- 5 - also determined that FCCS had proved by clear and convincing ev idence that a grant of permanent custody was in the children's best interests and that an award of legal custody

to Aunt was not in the children's best interest. {¶ 15} Father now appeals from the juvenile court's decision with resp ect to his son,

M.G. 1 {¶ 16} Father's sole assignment of error: {¶ 17} THE TRIAL COURT ERRED IN FINDING CLEAR AND CONVINCING EVIDENCE THE BEST INTEREST OF THE CHILD REQUIRED PERMANENT CUST ODY WITH FCCS (sic). {¶ 18} In his sole assignment of error, Father argues the juvenile cou rt's decision to grant permanent custody was not supported by clear and convinci ng evidence. Because Father's appeal concer ns only M.G., we will limit discussion to M.G. and the juvenile court's decision with respect to him. {¶ 19} Before a natural parent's constitutionally protected liberty in terest in the care and custody of his or her child may be terminated, the state is required to prove by clear and convincing evidence that the statutory standards for perman ent custody have been

met. In re K.W ., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, c iting Santosky v. Kramer , 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court 's review of a juvenile court's decision granting permanent custody is ge nerally limited to considering whether sufficient credible evidence exists to support the juve nile 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 therefore reverse a juvenile court's decision t o grant permanent custody only if there is a sufficient conflict in the evidence presented. In re K.A. , 12th Dist. Butler No.

1. No appeal was taken regarding M.N. and J.N.Fayette CA2021-07-015

- 6 - CA2016-07-140, 2016-Ohio-7911, ¶ 10. However, even if the juve nile court's decision is supported by sufficient evidence, "an appellate court may never theless 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. {¶ 20} In determining whether a juvenile court's decision is against t he manifest weight of the evidence in a permanent custody case, an appellat e court "'weighs the evidence and all reasonable inferences, considers the credibili ty 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.'" Id ., quoting Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio2179, ¶ 20. The presumption in weighing the evidence is in fav or 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 to more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdic t and judgment, most favorable to sustaining the verdict and judgment." Eastley at ¶ 21. {¶ 21} Pursuant to R.C. 2151.414(B)(1), the juvenile court may termina te parental rights and award permanent custody of a child to a children ser vices 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, uti lizing, 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. Second, pursuant to R.C. 2151.414(B)(1)(a) to (e), the juvenile court must find that any of the following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in the temporary custody of the agency for at least 12 mon ths of a consecutive 22-Fayette CA2021-07-015

- 7 - month period; (4) where the preceding three factors do not appl y, the child cannot be placed with either parent within a reasonable time or should not be pl aced with either parent; or (5) the child or another child in the custody of the parent from wh ose custody the child has been removed, has been adjudicated an abused, neglected, or dep endent child on three separate occasions. 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 se cond prong of the two-part permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio3188, ¶ 12. {¶ 22} In this case, the juvenile court found M.G. had been in the tem porary custody of FCCS for more than 12 months of a consecutive 22-month perio d at the time FCCS filed its motion for permanent custody. This finding is not disputed by Father and is supported by the record, as M.G. has been in the temporary custody of the agency since November 2019. Father instead disputes the juvenile court's decision fi nding that permanent custody of the children to the agency was in M.G.'s best interests. {¶ 23} When considering the best interest of a child in a permanent cu stody hearing, the juvenile court is required under R.C. 2151.414(D)(1) to con sider all relevant factors. This includes, but is not limited to, (1) the interaction and i nterrelationship of the child with the child's parents, siblings, r elatives, foster caregivers and out-of-town providers, and any other person who may significantly affect the child; (2) the wi shes of the child, as expressed directly by the child or through the child's guardian ad litem; (3) the custodial history of the child; (4) the child's need for a legally secure permanent plac ement and whether that type of placement can be achieved without a grant of permanent custo dy to the agency; and (5) whether any of the factors listed in R.C. 2151.414(E)(7) to (11 ) apply in relation to the parents and child. {¶ 24} Initially, with respect to M.G.'s relevant interactions and rel ationships withFayette CA2021-07-015

- 8 - those who may significantly impact his young life, the juvenile court found that Mother and Father have had no interaction with M.G since they were sent to prison in December 2019 when the child was one month old. On the other hand, M.G. is b onded with his foster family who have expressed an interest in adopting him. {¶ 25} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile co urt stated that M.G. is too young to express his wishes to the court. {¶ 26} With respect to R.C. 2151.414(D)(1)(c), the juvenile court revi ewed M.G.'s custodial history and found that he had been in the temporary c ustody of the agency for 12 or more months of a consecutive 22-month period. {¶ 27} In considering R.C. 2151.414(D)(1)(d), the juvenile court found that M.G. needs a legally secure placement, that the agency can provide t he necessary legally secure placement, and that such placement is the only way his needs ca n be achieved. The juvenile court also noted that Mother and Father are currently incarcerated and will not be able to provide any care for M.G. for at least 18 months. {¶ 28} Based upon its consideration of the R.C. 2151.414(D)(1) factors , the juvenile court found by clear and convincing evidence that an award of p ermanent custody of M.G.

to FCCS was in the child's best interest. {¶ 29} On appeal, Father asserts that the evidence did not support the grant of permanent custody in favor of FCCS. Father requests that the g rant of permanent custody be reversed and remanded for a new hearing on Aunt's motion for legal custody. {¶ 30} We have carefully and thoroughly reviewed the evidence in this case and find that the juvenile court's determination that an award of perman ent custody to FCCS is in the best interests of M.G. is supported by clear and convincing evidence and is not against the manifest weight of the evidence. As correctly determined b y the trial court, Mother and Father are incarcerated for felonious assault and endangering c hildren. They have notFayette CA2021-07-015

- 9 - interacted with M.G. since December 2019 when he was one month old. {¶ 31} Throughout these proceedings, FCCS explored possible placements for M.G., but was unable to locate a suitable alternative arrangeme nt. Aunt offered her home as an alternative placement and sought legal custody of all thr ee children involved in this case. However, Aunt was a resident of the home in which L.G. a nd A.G. were found to have suffered physical abuse. M.N. and J.N., whose development al delays suggest severe neglect, were also residing in the home. Nonetheless, Aunt did not believe there was anything wrong with the children's care, or demonstrate an abil ity to appreciate and care for the needs of any of the children. Aunt does not drive and has no income. Her husband, who she was recently separated from, has struggled to maintain employment and currently works for Door Dash making inconsistent income. The agency had rightful concerns about their financial ability to maint ain their residence. Furthermo re, Aunt regularly communicates

with Mother and there are substantial concerns that she would a llow Mother and Father to be in contact with the children once they are released from pri son. {¶ 32} In denying Aunt's motion for legal custody, the juvenile court considered the various R.C. 3109.04(F)(1) best interest factors applicable to custody determination and found that an award of legal custody to Aunt would not serve th e children's best interest. The factual findings made by the juvenile court in this regard are supported by the record. Additionally, and as discussed above, the juvenile court determ ined that an award of permanent custody to FCCS was in the children's best interest u pon a consideration of the R.C. 2151.414(D)(1) factors. "The best interest factors of R.C . 2151.414(D) are not only relevant to the question of permanent custody, but also provide appropriate guidance in determining whether a grant of legal custody is in the best int erest of a child." In re J.A. , 9th Dist. Summit No. 24134, 2008-Ohio-3635, ¶ 9. "[I]f permane nt custody to the agency is in the children's best interest, legal custody [to a relativ e] necessarily is not. * * *Fayette CA2021-07-015

- 10 - Accordingly, the willingness of a relative to care for a child does not alter what the court must consider in determining permanent custody." In re M.S. , 8th Dist. Cuyahoga No. 101693, 2015-Ohio-1028. ¶ 11. {¶ 33} Considering the foregoing, we find the juvenile court's decisio n was supported by clear and convincing evidence and was not against the manife st weight of the evidence. Therefore, the juvenile court did not err by granting permanent custody of M.G. to FCCS. Father's sole assignment of error is overruled. {¶ 34} Judgment affirmed.

S. POWELL and BYRNE, JJ., concur.