[Cite as In re A.D., 2014-Ohio-5083.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

FAYETTE COUNTY 

IN THE MATTER OF: : 

 A.D., et al. : CASE NO. CA2014-06-014 

 

 : O P I N I O N

 11/17/2014 

 : 

 : 

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. 13AND0772 and 13AND00773 

Kristina M. Osterle, P.O. Box 314, Washington C.H., Ohio 43160, guardian ad litem 

Jennifer J. Hitt, 63 North Main Street, Suite B, London, Ohio 43140, for appellant, M.S. 

Jess C. Weade, Fayette County Prosecuting Attorney, 110 East Court Street, Washington 

C.H., Ohio 43160, for appellee, Fayette County Dept. of Job & Family Services 

 RINGLAND, P.J.

{¶ 1} Appellant, the mother of A.D. and G.D. (Mother), appeals a decision of the 

Fayette County Court of Common Pleas, Juvenile Division, granting permanent custody of 

the two children to Fayette County Children Services (Agency). For the reasons stated 

below, we affirm the decision of the juvenile court. 

{¶ 2} Since August 2009, Mother has been serving a term of community control in 
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connection with her felony conviction for receiving stolen property. During that time, Mother 

has battled drug addiction, violated her probation, and served jail time. In 2011, the Agency 

received temporary custody of A.D. and G.D. for 11 months. At the close of the Agency's 

case, A.D. and G.D. were placed in the custody of their Father, who resides in Florida. While 

Father had custody of the children, Mother attended and completed an inpatient drug 

treatment program. In October 2013, Father relinquished custody of the children to Mother. 

{¶ 3} Mother had custody of the children for approximately a month when she was 

arrested on November 5, 2013 for failing to report to her probation officer. Mother tested 

positive for marijuana, heroin, and cocaine and was incarcerated. On November 6, 2013, the 

Agency filed a motion for emergency temporary custody of A.D. and G.D., which the trial 

court granted that same day. The Agency also filed a complaint alleging that A.D. and G.D. 

were neglected and dependent children and sought permanent custody of the children. 

Thereafter, the juvenile court found that A.D. and G.D. are dependent children and it is in the 

children's best interest to remain in the temporary custody of the Agency pending disposition 

of the case. 

{¶ 4} In December 2013, Mother's community control was revoked and she was 

sentenced to a six-month term of imprisonment. During this time, Mother's husband 

(Stepfather) was also incarcerated on drug-related charges. On December 12, 2013, the 

Agency filed a case plan to reunify Mother with A.D. and G.D. The case plan required

Mother to remain drug free and complete drug and mental health treatment programs, attend 

parenting classes, and provide for the children's basic needs. 

{¶ 5} On April 17, 2014, the juvenile court held a hearing regarding the Agency's 

request for permanent custody of A.D. and G.D. Father permanently surrendered his 

parental rights to the children. At the time of the hearing, Mother remained incarcerated but 

was scheduled to be released from prison in one week. 
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{¶ 6} Jack Anders, the Chief Probation Officer for Fayette County Adult Probation 

Department, testified that Mother was placed on community control in 2009. Anders 

explained that Mother struggled with an opiate addiction and, through the assistance of the 

Probation Department, participated in several outpatient and inpatient drug treatment 

programs. Mother only completed one of the inpatient treatment programs. During Mother's 

probation, she was jailed on numerous occasions for positive drug screens. In June 2011, 

Mother was arrested for driving without a license when police found her asleep in her car at a 

stop sign. Mother admitted she had been using narcotics and police found drug 

paraphernalia in her home. Later, in September 2011, Mother received a probation violation 

for failing to report to her probation officer and failing to take a drug test. As a result of this 

violation, Mother's probation was extended for another five years. After this violation, Mother 

did not receive another probation violation but was placed in jail several times by her 

probation officer due to her drug issues. 

{¶ 7} Anders testified that in 2013, Mother attended and completed an inpatient drug 

treatment program. Mother remained sober until the fall of 2013 when Anders found Mother 

with drug paraphernalia. In November 2013, Mother was arrested for failing to report to her 

probation officer and failing to take a drug test. Eventually, Mother's probation was revoked 

which led to her six-month jail sentence. 

{¶ 8} Margo Robinson, the Agency case worker assigned to the family, also testified 

regarding Mother's struggles with drug addiction. Robinson explained that Mother does not 

have a driver's license, has not been employed since 2011, is married to Stepfather who also 

struggles with substance abuse, lives off Stepfather's disability check, and had not arranged 

for suitable housing when she was released from jail. Additionally, the Agency has concerns 

with Mother's mental health and there are allegations of violence between Mother and 

Stepfather. 
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{¶ 9} Robinson explained that the Agency received temporary custody of the children 

in 2011 because there were concerns over Mother's drug use. Father initially received 

custody of the children but agreed to relinquish custody to Mother after a year. 

Subsequently, Mother relapsed, her probation was revoked, and the Agency again received 

temporary custody of the children. Robinson testified that A.D. has used drugs, G.D. has cut 

herself, and both children are very angry with Mother and do not want to live with her 

anymore. Father has agreed to terminate his parental rights. The grandmother of the girls 

stated she would not take custody of the children until Mother's parental rights were 

terminated. The Agency also contacted a cousin who was deemed inappropriate for 

placement. 

{¶ 10} Lastly, Mother testified at the hearing that she was due to be released from jail 

in one week. Upon release, Mother plans to live with her sponsor in Fayette County and the 

children can live in the sponsor's home as well. Mother stated that while in jail she attended 

substance abuse meetings five days a week and that she underwent a mental health 

assessment and she was cleared. Once she is released, Mother plans to end her 

relationship with Stepfather due to his history of drug abuse and to find employment. 

{¶ 11} In an entry dated June 17, 2013, the juvenile court found by clear and 

convincing evidence that it was in the best interest of A.D. and G.D. to grant permanent 

custody to the Agency. The court also found that the Agency had made reasonable efforts 

toward reunifying the family. 

{¶ 12} Mother now appeals, asserting two assignments of error. 

{¶ 13} Assignment of Error No. 1: 

{¶ 14} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING 

THAT [THE AGENCY] MADE REASONABLE EFFORTS TO MAKE IT POSSIBLE FOR THE 

MINOR CHILDREN TO RETURN HOME TO [MOTHER]. 
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{¶ 15} Mother argues that the juvenile court erred in granting permanent custody to 

the Agency because the Agency had not made reasonable efforts to reunify the family. 

Mother maintains that the Agency should have given her more time to comply with the case 

plan because during the time the Agency had temporary custody of the children, she was 

incarcerated. 

{¶ 16} 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 

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

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 limited to whether sufficient 

credible evidence exists to support the juvenile court's determination. In re Starkey, 150 

Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding 

by the juvenile court that the evidence was clear and convincing only if there is a sufficient 

conflict in the evidence presented. In re Rodgers, 138 Ohio App.3d 510, 520 (12th 

Dist.2000).

{¶ 17} Except for a few narrowly defined statutory exceptions, R.C. 2151.419 requires 

a children services agency to make reasonable efforts to reunify a family prior to the 

termination of parental rights. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 21. The 

children services agency shall have the burden of proving that it made those reasonable 

efforts. R.C. 2151.419(A)(1). While the court is not required to make a reasonable efforts 

determination at a hearing on a permanent custody motion, this finding must have been 

made at other stages of the child-custody proceeding. In re C.F. at ¶ 42. In this case, the 

juvenile court made reasonable efforts findings both prior to the hearing on the permanent 

custody motion and in its decision granting permanent custody.

{¶ 18} As this court has stated, "[i]n determining whether the agency made reasonable 
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efforts to prevent the removal of the child from the home, the issue is not whether the agency 

could have done more, but whether it did enough to satisfy the reasonableness standard 

under the statute." In re K.L., 12th Dist. Clermont No. CA2012-08-062, 2013-Ohio-12, ¶ 18, 

citing In re K. M., 12th Dist. Butler No. CA2004-02-052, 2004-Ohio-4152, ¶ 23. "Reasonable 

efforts" does not mean all available efforts. Otherwise, there would always be an argument 

that one more additional service, no matter how remote, may have made reunification 

possible. In re K.L. at ¶ 18. 

{¶ 19} Upon a review of the record, the Agency made reasonable efforts to reunify the 

children with Mother or other family members. The Agency has been involved with the family 

for several years and Mother has failed to remain drug free, provide for the children's basic 

needs, or provide a safe home for the children. Mother has participated in numerous drug 

treatment programs yet continues to relapse. Mother has failed to obtain employment and 

does not have a driver's license. She is married to Stepfather who struggles with drug 

addiction and was incarcerated at the time of the permanent custody hearing. Additionally, 

the children do not wish to live with Mother anymore and while in the custody of Mother, the 

children experimented with drugs and self-inflicted cutting. The Agency has also made 

reasonable efforts to reunify the children with other family members. Father has surrendered 

his parental rights to the children. The Agency contacted a cousin who was deemed 

inappropriate for placement and the children's maternal grandmother did not want custody 

until Mother's parental rights were terminated. 

{¶ 20} While the current case plan was filed when Mother was incarcerated, the 

evidence demonstrated that the Agency has been involved with Mother and the children for 

years and the Agency has made reasonable efforts to reunify the family. Therefore, the 

juvenile court did not err in finding throughout the case that the Agency made reasonable 

efforts to reunite the children with their family. 
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{¶ 21} Mother's first assignment of error is overruled. 

{¶ 22} Assignment of Error No. 2: 

{¶ 23} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT 

FOUND BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST 

OF THE MINOR CHILDREN TO GRANT PERMANENT CUSTODY TO [THE AGENCY] 

WITHOUT EVALUATING THE LESS RESTRICTION [sic] OPTION OF PLANNED 

PERMANENT LIVING ARRANGEMENTS FOR THE MINOR CHILDREN. 

{¶ 24} Mother argues that the juvenile court erred in finding that it was in the best 

interest of the children to grant permanent custody to the Agency. Specifically, Mother 

argues the Agency did not review the children's need for a legally secure permanent 

placement and whether that type of placement could have been achieved by a planned 

permanent living arrangement. 

{¶ 25} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and 

award permanent custody to a children services agency if it makes findings pursuant to a 

two-part test. First, the 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). Second, the 

court must find that any of the following apply: the child is abandoned; the child is orphaned; 

the child has been in the temporary custody of the agency for at least 12 months of a 

consecutive 22-month period; or where the preceding three factors do not apply, the child 

cannot be placed with either parent within a reasonable time or should not be placed with 

either parent. R.C. 2151.414(B)(1)(a)-(d); In re E.B., 12th Dist. Warren Nos. CA2009-10-139 

and CA2009-11-146, 2010-Ohio-1122, ¶ 22. Only one of those findings must be met for the 

second prong of the permanent custody test to be satisfied. In re T.D., 12th Dist. Preble No. 

CA2009-01-002, 2009-Ohio-4680, ¶ 15.

{¶ 26} The juvenile court found by clear and convincing evidence that the children 
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cannot be placed with Mother or Father within a reasonable time and should not be placed 

with either parent. Father had permanently surrendered his parental rights for both children. 

The Court also found that the children could not be placed with Mother within a reasonable 

time because at the time of the hearing, Mother was due to be released from prison in one 

week; she had relapsed into drug use despite participating in numerous drug treatment 

programs; she had not sought employment since the Agency's involvement; she is married to 

Stepfather who was incarcerated and struggles with substance abuse; and she does not 

have suitable housing and is unable to meet the children's basic needs. 

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

permanent custody hearing, the court shall consider all relevant factors, including but not 

limited to:

(a) The interaction and interrelationship of the child with the 

child's parents, siblings, relatives, foster caregivers and out-ofhome 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 more months of a consecutive twenty-two month 

period * * *; 

(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. 

R.C. 2151.414(D)(1). 

{¶ 28} With respect to R.C. 2151.414(D)(1)(a), the juvenile court found the children 

have had no interaction with Mother for six months due to Mother's incarceration. Father 
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had custody of the children for a year but experienced considerable difficulty with the 

children in the home and agreed to return custody to Mother in the fall of 2013. During the 

case, Father permanently surrendered his rights to each child. With respect to R.C. 

2151.414(D)(1)(b), the juvenile court found that both A.D. and G.D. are very angry with 

Mother and have expressed a desire not to have any contact with Mother. At the time of the 

hearing, the children were 16 years old and 14 years old. 

{¶ 29} With respect to R.C. 2151.414(D)(1)(c), the juvenile court found that the 

Agency has had temporary custody of A.D. and G.D. twice in the past three years. The 

Agency received temporary custody of the children in both instances due to Mother's drug 

issues. With respect, to R.C. 2151.414(D)(1)(d), the juvenile court found that the children 

are in need of legally secure placement which Mother is unable to provide. 

{¶ 30} In regards to Mother's argument that the appropriate disposition would have 

been a planned permanent living arrangement, we remind Mother that the juvenile court was 

without authority to place the children in a planned permanent living arrangement, as the 

Agency did not file a motion requesting such a disposition. In re A.B., 110 Ohio St.3d 230, 

2006-Ohio-4359, ¶ 37. Moreover, the Agency had no obligation to request such a 

disposition. In re C.T., 12th Dist. Butler No. CA2008-07-180, 2009-Ohio-1037, ¶ 34. 

{¶ 31} Based on consideration of the statutory factors, the juvenile court determined by 

clear and convincing evidence that it was in the best interest of A.D. and G.D. to grant 

permanent custody to the Agency. After careful review, we find the juvenile court's decision is 

supported by the evidence and it is in the best interest of the children to grant permanent 

custody to the Agency. The evidence establishes that the children cannot be placed with 

either parent within a reasonable time and should not be placed with either parent. 

Additionally, the evidence supports that granting permanent custody to the Agency is in the 

best interest of the children. Mother has struggled with drug addiction for years, had 
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completed several drug treatment programs yet continues to relapse, is married to a drug 

addict, and has failed to obtain employment. Both A.D. and G.D. expressed to the court that 

they do not wish to live with Mother anymore, A.D. has substance abuse problems, and G.D. 

has cut herself. Therefore, the juvenile court did not err in determining that it was in the best 

interest of the children to grant permanent custody to the Agency. 

{¶ 32} Mother's second assignment of error is overruled 

{¶ 33} Judgment affirmed. 

S. POWELL and HENDRICKSON, JJ., concur.