[Cite as In re M.A. , 2019-Ohio-5367.] IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE:

M.A. :

:

:

: CASE NO. CA2019-08-129

O P I N I O N

12/30/2019

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case No. JN2017-0105

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Amy R. Ashcraft, P.O. Box 172, Seven Mile, Ohio 45062, for appe llant Legal Aid Society of Southwest Ohio, LLC, Jamie Landvatter, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011, Guardian ad Litem

HENDRICKSON, P.J. {¶ 1} Appellant, father of M.A., appeals the decision of the Butler C ounty Court of Common Pleas, Juvenile Division, granting permanent custody of M.A. to appellee, Butler County Department of J ob and Family Services, Children Services Division ("BCDJFS"). 1 For the reasons detailed below, we a ffirm the juvenile court's deci sion. {¶ 2} BCDJFS filed a complaint on March 20, 2017, alleging dependency of M.A. and requesting temporary custody. At the time of the complaint, M. A. was nearly two and one-

1. While a party to the permanent custody proceeding, M.A.'s mo ther did not appeal the decision granting permanent custody to BCDJFS.Butler CA2019-08-129

- 2 - half years old and lived with his mother and three older half-s iblings. 2 The juvenile court granted temporary custody and BCDJFS placed M.A. with his pater nal grandmother. That placement proved unsuitable, so in early April 2017, M.A. was m oved into foster care. Based in part on the need to change placement and because the initial complaint did not provide specific facts for the dependency allegation, BCDJFS filed an a mended complaint on April 6, 2017. The amended complaint alleged several bases for dependen cy: M.A.'s mother was homeless, unemployed, and had been sentenced to serve time in j ail; appellant had active warrants from the Middletown Municipal Court for drug offenses; appellant had been arguing and fighting over housing and finances in the presence of the c hildren; and appellant had

violated an earlier order from the court to have no contact wit h M.A. {¶ 3} On June 5, 2017, the juvenile court adjudicated M.A. dependent. A dispositional hearing was held on July 7, 2017 before a magistr ate. The magistrate ordered M.A. to remain in the temporary custody of BCDJFS and approved a case plan which had the goal of reunification of M.A. with his parents. This case plan required appellant to complete a

substance abuse/mental illness a ssessment, complete treatment a nd therapeutic programs based on that assessment, submit to drug screening upon request , procure and maintain stable employment and housing, participate in a parenting educa tion program, and demonstrate an understanding of his child's individual needs wi th an ability to consistently meet those needs. The juvenile court subsequently adopted the magistrate's dispositional

orders. {¶ 4} During the pendency of the case, appellant only limitedly compl ied with the case plan requirements. Appellant completed the required subst ance abuse/mental illness assessment and requested drug screenings, however, he failed to complete the

2. M.A.'s siblings were also subject to separate abuse, neglec t, dependency proceedings. These siblings have no biological relation to appellant.Butler CA2019-08-129

- 3 - recommended treatment and therapeutic programs. In addition, a ppellant routinely tested positive for illicit controlled substances such as amphetamine, methamphetamine, cocaine, and marijuana on requested drug screenings. Furthermore, appel lant was intermittently incarcerated for different criminal charges. Finally, appellan t had his regular visitation appointments with M.A. suspended on two occasions because of hi s failure to appear at appointments or arrive late to appointments two times within a 30-day period. {¶ 5} On October 12, 2018, B CDJFS moved for permanent custody of M.A. In March 2019, a juvenile court magistrate held a hearing on the matter. At the hearing, the magistrate heard testimony from M.A.'s mother, appellant, and the assigned BCDJFS caseworker. Additionally, BCDJFS presented several documentary exhibits inc luding the drug screening analyses, the social summary reports generated by BCDJFS, appel lant's substance abuse/mental illness assessments, and the reports from appellan t's limited treatment/therapeutic services. {¶ 6} On March 25, 2019, the magistrate granted the motion for perman ent custody. The juvenile court overruled objections filed by appellant and adopted the magistrate's decision. Appellant now appeals, raising two assignments of er ror for review. For ease of analysis, the two assignments of error will be discussed togeth er. {¶ 7} Assignment of Error No. 1: {¶ 8} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY

GRANTING BCCS'S MOTION FOR PERMANENT CUSTODY WITHOUT THE SUPPOR T OF CLEAR AND CONVINCING EVIDENCE. {¶ 9} Assignment of Error No. 2: {¶ 10} THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY

GRANTING THE STATE'S MOTION FOR PERMANENT CUSTODY WHICH WAS NOT

SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.Butler CA2019-08-129

- 4 - {¶ 11} In both assignments of error, appellant argues that the trial c ourt should not have granted BCDJFS permanent custody because BCDJFS failed to prove permanent custody was in M.A.'s best interest and the decision was agains t the manifest weight of the

evidence. {¶ 12} R.C. 2151.414 provides a juvenile court the authority to termin ate parental rights and award permanent custody to a public children service s agency. The state is required to prove by clear and convincing evidence that the sta tutory standards for permanent custody have been met before a natural parent's const itutionally protected liberty interest in the care and custody of her child may be terminated

. In re K.W. , 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing Santosky v. Kramer , 455 U.S. 745, 102 S.Ct. 1388 (1982). The clear and convincing standard of proof requires such evidence that will "produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to

be established." In re T.P. , 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 18. {¶ 13} Pursuant to R.C. 2151.414(B)(1), the juvenile court must make f indings pursuant to a two-part test. In re C.D. , 12th Dist. Clermont No. CA2019-02-014, 2019-Ohio4911, ¶ 14. First, the juvenile court must find that it is in the best interest of the child to grant permanent custody to the requesting agency. In re C.B. , 12th Dist. Clermont No. CA2015- 04-033, 2015-Ohio-3709, ¶ 10. Second, the juvenile court must find that one of the following R.C. 2151.414(B)(1)(a)-(e) factors exists: the child is abandon ed; the child is orphaned; the child has been in the temporary custody of the agency for at le ast 12 months of a consecutive 22-month period; 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; or on three separate occasions the child or anot her child in the custody of the parent from whose custody the child has been removed has been a djudicated an abused, neglected, or dependent child. In re L.S. , 12th Dist. Brown Nos. CA2019-03-001 andButler CA2019-08-129

- 5 - CA2019-03-002, 2019-Ohio-3143, ¶ 19. {¶ 14} On review, an appellate court is "generally limited to consider ing whether sufficient credible evidence exists to support the juvenile cou rt's determination." In re A.S. , 12th Dist. Butler Nos. CA2019-05-071, CA2019-05-072, and CA2019 -05-073, 2019-Ohio4127, ¶ 19. Therefore, t his court will reverse the juvenile co urt's decision to grant permanent custody only if there is a sufficient conflict in the evidence presented. In re W.J.T. , 12th Dist. Butler No. CA2019-03-047, 2019-Ohio-3051, ¶ 22. {¶ 15} Nevertheless, an appellate court may conclude that the judgment is against the manifest weight of the evidence. In re A.S. at ¶ 19. To determine whether the judgment was against the manifest weight of the evidence, an appellate court : "weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolvin g conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the judgmen t must be reversed and a new trial ordered." In re S.M. , 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and C A2018-08-094 thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. In weighing the evidence, there is a pre sumption in favor of the findings made by the finder of fact and evidence susceptible to more than one construction will be construed to sustain the verdict and judgment. In re C.Y ., 12th Dist. Butler Nos. CA2014-11-231, CA2014- 11-236, CA2014-11-237, and CA2014-11-238, 2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21. {¶ 16} On appeal, appellant does not dispute that the trial court had sufficient evidence to satisfy the second part of the two-part test. The juvenile court found that R.C. 2151.414(B)(1)(d) applied because M.A. had been in the temporar y custody of BCDJFS for

more than 12 months out of a cons ecutive 22-month period from t he date of adjudication to the time BCDJFS's moved for permanent custody. The record cont ains competent credibleButler CA2019-08-129

- 6 - evidence supporting this finding. The second prong of the perma nent custody test is

therefore satisfied. {¶ 17} Instead, appellant contends that the juvenile court erred in it s consideration of the best interest of M.A. In examining the child's best intere st, a juvenile court is required to consider all relevant factors, including, but not limited to th e following: (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 c hild has been in the temporary custody of one or more public childre n 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 fo r 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 t his section apply in relation to the parents and child. R.C. 2151.414(D)(1)(a)-(e). In cons idering these best interest factors, "[t]here is not one element that is given greater weight than the others pursuant t o the statute." In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56. Moreover, the focus is on the child's best interest, therefore "[p]arental interests must be subordinated to the child's interest in determining an appropriate disposition of any petition to termi nate parental rights." In re Cunningham , 59 Ohio St.2d 100, 106 (1979).Butler CA2019-08-129

- 7 - {¶ 18} Here, the juvenile court made findings as to each of these fact ors. First, the juvenile court discussed M.A.'s interaction and interrelationsh ip with appellant and the foster caregiver. The juvenile court found that it was clear appellan t loved M.A. Notwithstanding that affection, the juvenile court found that appellant had pro blems visiting M.A. with several instances of either arriving late to the scheduled appointment or completely failing to attend. Moreover, the juvenile court found that M.A. becomes agitated b efore visits with his parents. {¶ 19} This court's review of the record supports the trial court's fi ndings. At the hearing, appellant admitted that his visitation privileges were suspended at least once and

that he had missed visits because of his incarceration. The re cord demonstrates that appellant's visitation appointments were suspended in May 2018 and then later in October 2018. While appellant's visits were reinitiated at the time of the permanent custody hearing, appellant was required to confirm the visits in advance and rep ort several hours early to the appointment. Furthermore, appellant's visitation privileges ne ver progressed beyond supervised visits. {¶ 20} Regarding M.A.'s relationship with the foster caregiver, the ju venile court found that M.A. is making progress in the foster home and is involved in activities and the family. The caseworker testified that M.A.'s foster caregiver was condu cting preschool equivalent activities with M.A. and expressed interest in adopting M.A. I n addition, M.A.'s ability to interact and communicate with others has improved since his ini tial removal from the parents'

home. {¶ 21} Second, the juvenile c ourt addressed the wishes of the child. The juvenile court did not interview M.A. but found that M.A.'s wishes were convey ed through the guardian ad litem, who recommended BCDJFS be granted permanent custody. {¶ 22} Third, the juvenile addressed M.A.'s custodial history. The ju venile court found that M.A. had been in the custody of BCDJFS for 12 months out o f a consecutive 22-monthButler CA2019-08-129

- 8 - period. Specifically, M.A. had been in foster care from the da te of adjudication in June 2017 to the filing of the motion for permanent custody in October 20 18. Therefore, M.A. had been in temporary custody for more than 16 months out of a 22-month consecutive period. {¶ 23} Fourth, the juvenile court discussed M.A.'s need for legally se cure placement. The juvenile court made several findings as to appellant's suit ability for placement. The juvenile court noted that appellant was employed in the constru ction industry and provided a "somewhat confusing testimony about his housing situation," but had stable housing and employment. As to the other requirements of the case plan, the juvenile court found that appellant initiated his recommended treatment program following a substance abuse/mental illness assessment, but discontinued his involvement in that pr ogram and failed to participate in the other available services. Ultimately, the juvenile cour t found that "except for employment and housing, [appellant] has completed no case plan services." Consequently, the juvenile court found that the only option to provide legall y secure permanent placement was to grant permanent custody to BCDJFS. 3 {¶ 24} At the permanent c ustody hearing, appellant admitted that durin g the pendency of the case he was incarcerated for a period of time and this p revented him from participating in case plan services. Further, the record shows that appellan t had to complete a second

substance abuse/mental illness assessment and new information r elease authorizations to

obtain new referrals for treatment services because the initial referrals had expired. {¶ 25} Although the juvenile court found stable housing, our review of the record shows that appellant did not confirm his permanent residence. According to appellant, he lived in three places: his brother's residence, his mother's re sidence, and "on and off" at the residence of M.A.'s mother. Thus, his living situation remains similar to the time the initial

3. The juvenile court decided that reunification with M.A.'s m other remained an unsuitable option.Butler CA2019-08-129

- 9 - complaint was filed, a time in which appellant described his re sidence with M.A. and M.A.'s mother as also "on and off." Appellant presented no additional evidence to clarify his housing situation. {¶ 26} As to the last R.C. 2151.414(D)(1) best interest factor, the ju venile court found that none of the R.C. 2151.414(E)(7 )-(11) factors applied to ap pellant. {¶ 27} Finally, in addition to the R.C. 2151.414(D)(1) best interest f actors, the juvenile court found that M.A. could not be placed with appellant within a reasonable time. R.C. 2151.414(E) provides that if one of several factors exists then "the court shall enter a finding that the child cannot be placed with either parent within a rea sonable time or should not be placed with either parent." In this case, the juvenile court f ound that R.C. 2151.414(E)(1) applied, which states: Following the placement of the child outside the child's home a nd notwithstanding reasonable case p lanning and diligent efforts b y the agency to assist the parents to remedy the problems that initially caused the child to be placed outside the home, the parent has failed continuously and repeatedly to substantially remedy the conditions causing the child to be placed outside th e child's home. In determining whether the parents have substantially remedied those condi tions, the court shall consid er parental utilization of medical, psychiatric, psychological, an d other social and rehabilitative se rvices and material resources that were made available to the parents for the purpose of changing parental conduct to allow them to resume and maintain parental duties. {¶ 28} Here, the juvenile court found that BCDJFS made diligent effort s to assist, but appellant's repeated failure to participate and complete the su bstance abuse and mental health treatment, in addition to the fact that he had "recently " tested positive for methamphetamine at a drug screening, established that appellant had failed to substantially remedy the conditions that caused M.A. to be removed from the h ome. As this court has previously explained, "the key concern is not whether the paren t has successfully completed the case plan, but whether the parent has substantially remedied the concerns that causedButler CA2019-08-129

- 10 - the child's removal from the parent's custody." (Emphasis sic. ) In re S.M. , 12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 24. {¶ 29} Appellant testified that the focu s of his case plan's treatment and therapeutic services was treating subst ance abuse. Yet, appellant continue d to test positive for

controlled substances. The reco rd shows that appellant tested positive for illicit controlled substances on 12 out of 13 of the administered drug screenings that occurred from May 2017 to February 2019. The substance most often identified on these screenings was amphetamine/methamphetamine, however, as noted above, on some o ccasions, appellant tested positive for cocaine or marijuana use. Furthermore, app ellant did not "engage" in the recommended treatment/therapeutic services until November 2018, which is a month after the motion for permanent custody was filed, and even then, appe llant stopped participating in the services by the end of December 2018. At the permanent cus tody hearing, appellant claimed to have attended one more treatment/therapy session sho rtly before the hearing. Appellant did not offer an expl anation for his substance abuse issues, despite acknowledging the unfavorable drug screening results. Consequently, appellan t's contention that he "engaged in all the services during the pendency of the case" b elies his actual efforts. {¶ 30} Even if we accepted appellant's contention that he "engaged" wi th the

recommended services: the completion of case plan services alone does not equate to, or necessitate a finding that the parents have substantially remedied the conditions that caused the removal of the child from the home.

In re E.B. , 12th Dist. Warren Nos. CA2009-10-139 and CA2009-11-146, 2010- Ohio-1122, ¶ 30. As this court has previously explained: [a] juvenile court "is not required to deny [a] permanent custo dy motion simply based upon the groundless speculation that the [parent] might successfully complete her drug treatment, * * * and remain drug-free." In re J.C. , 4th Dist. No. 07CA834, 2007 OhioButler CA2019-08-129

- 11 - 3783, ¶ 25. "[A] parent is afforded a reasonable, not an indefinite, period of time to remedy the conditions causing the children's removal." In re L.M. , 11th Dist. No. 2010-A-0058, 2011 Ohio 1585, ¶ 50. Although at the time of the permanent custody hearing, [the parent] had taken some small steps toward recovery and compliance with the case plan, it was too little, too late. Further, there is no indication [the parent] has remedie d her substance abuse problem.

In re A.M.L. , 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32. A s in In re A.M.L. , here, appellant's limited compliance was too late and insignifi cant. Moreover, as the juvenile court found, appellant did not complete his recommended service s. Ultimately, the record shows that appellant did not r emedy the conditions causing the initial removal and has not treated his substance abuse issues. Therefore, it was in the b est interest of M.A. for the juvenile court to grant permanent custody to BCDJFS. {¶ 31} In conclusion, BCDJFS presented sufficient evidence at the perm anent custody hearing to clearly and convincingly prove that it was in M.A.'s best interest for BCDJFS to have permanent custody. After our review of the record, we fin d the permanent custody decision was not against the manifest weight of the evidence. Accordingly, both assignments

of error are overruled. {¶ 32} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.