[Cite as In re L.F. , 2020-Ohio-583.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: JUDGES: Hon. William B. Hoffman, P.J L.F. Hon. W. Scott Gwin, J. Hon. Crai g R. Baldwin, J. Case Nos. 2019CA0064, 2019CA0065, & 2019CA0066

O P I N IO N

CHARACTER OF PROCEEDINGS: Appeal from the Licking County Court of Common Pleas, Juvenile Division, Case Nos. F2017-0405, F2017-0406, F2017- 0407

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: Februar y

19, 2020

APPEARANCES:

For Mothe r For Fathe r FITTRO LAW, LLC MICHAEL DALSANTO 1335 Dublin Road, Suite 115F 33 West Main Street, Suite 109 Columbus, Ohio 43215 Newark, Ohio 43055

Assistant Prosecutin g Attorne y Guardian Ad Litem MANDY DELEEUW ROBIN L. GREEN 42 S. Second Street, Fourth Floo r P.O. Box 157 Newark, Ohio 43055 Newark, Ohio 43055Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 2

Hoffman, P.J. {¶1} In Licking App. Nos. 19-CA-64, 19-CA-65, and 19-CA-66, Appellan t Leah McDaniel-Pierce (“Mother”) appeals three July 3, 3019 Judgment Entries entered by the Licking County Court of Common Pleas, Juvenile Division, which overruled her objections to the magistrate’s April 19, 2019 decision, approved and adopt ed said decision as order of the court, terminated her parental rights, privileges and re sponsibilities with respect to her three minor children, and granted permanent custody of the children to appellee Licking County Job and Family Services (“LCJFS”).

STATEMENT OF THE FACTS AND CASE {¶2} Mother and Lorenzo Feaster (“Father”) (collectively, “Parents”) are the biological parents of Child 1, Child 2, and Child 3 (collective ly, “the Children”). 1 On June 7, 2017, the trial court issued an ex parte order of removal of the Children due to allegations of parental substance abuse, concerns regarding Mot her and Father’s mental health, and domestic violence in the home. The trial court gra nted emergency shelter care custody of the Children to LCJFS on June 8, 2017. {¶3} LCJFS filed Complaints relative to the Children on June 8, 2017 . The Complaints were filed after law enforcement responded to Parent s’ home on June 7, 2017, upon receiving a report Mo ther was h anging out o f a windo w, calling for help. When officers arrived, they found Parents acting confused and report ed an altercation. Parents have a history of domestic violence. Officers were informed Fa ther had turned on the gas stove and was threatening to ignite the flame with a lighter. Officers transported Mother and the Children to New Beginnings, where Mother continued to d isplay erratic behavior.

1 Father is not a party to this appeal.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 3

Mother had a prior involvement with LCJFS in 2014, which result ed in the Children being adjudicated dependent and removed from her care. The Children w ere subsequently

returned to Mother. {¶4} The Complaints also alleged Parents use illegal substances. Pa rents were drug tested on June 7, 2017. Mother tested positive for amphet amines, methamphetamines, and THC. Mother admitted she and Father had smoked meth earlier that day. Father tested positive of Oxycodone, THC, and metham phetamines. Mother’s criminal history included a number of charges for domestic viol ence. Father had a significant criminal history including burglary, robbery, viola tion of a protection order, and possession of drugs. Parents also have a history of mental heal th concerns. {¶5} The magistrate ordered Parents to undergo evaluations and atten d counseling at the Licking County Alcoholism Prevention Program or other approved drug and/or alcohol treatment program, and submit to random drug scr eening and breathalyzer testing. LCJFS filed Mother’s case plan on July 6, 2017. The case plan required Mother to complete a substance abuse assessment and follow all recomme ndations, complete a mental health evaluation and follow all recommendations, obtain and maintain stable employment and housing, and address domestic violence issues. The trial court conducted an uncontested adjudicatory and dispositional hearing on July 26, 2017, and found the Children to be dependent. {¶6} LCJFS filed motions for permanent custody of the Children on Ma y 9, 2018. On September 14, 2018, Mother filed a motion for temporary cust ody to maternal grandmother, Lorrie Lessig (“Mater nal Grandmother”), or, in the alternative, a motion forLickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 4

extension of temporary custody. The guardian ad litem filed he r report and recommendation on September 19, 2018. {¶7} The case proceeded to hearing before the magistrate on December 19, 2018, and January 14, 2019. The following evidence was presente d at the hearing. {¶8} Mother attended two sessions at Behavioral Healthcare Partners (“BHP”) for assessment in June and July, 2017. A treatment plan was no t created as Mother failed to attend the additional sessions necessary to create th e plan. Based upon the information obtained during the two sessions, Stacy Thaxton, th e BHP therapist conducting the intake, was able to determine additional service s were warranted for outpatient individual counseling as well as substance abuse tre atment. BHP closed Mother’s case in February, 2018. Mother engaged in mental heal th services through The Main Place from September, 2018, until November, 2018, when she became

incarcerated. {¶9} Mother testified she never engaged in substance abuse treatment . She admitted she continued to use drugs, most recently a week befor e the January 14, 2019 hearing date. Mother never addressed the domestic violence con cerns. Mother continued to have contact with Father despite a civil protectio n order issued against him. {¶10} Mother was technically homeless throughout the course of the pr oceedings. She had not had stable housing since August, 2017. Mother was staying with her brother at the time of the second hearing. In November, 2018, Mother r esorted to spending the night in a storage unit with Father. Mother had not been emplo yed since 2017. That employment had lasted only one week.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 5

{¶11} The Children all have special needs. Child 1 has adjustment di sorder with disturbance of conduct. Child 1 is not prescribed medication. Although LCJFS is trying to engage Child 1 in counseling, Child 1 refuses to cooperate. Child 2 has ADHD as well as conduct disorder, disruptive mood disorder, and intermittent explosive disorder. Child 2 is prescribed medication and attends counseling. Child 3 has ADHD, disruptive mood disorder, and dysregulation disorder. Child 3 is prescribed me dication, but does not attend counseling. The Children are very defiant. They have b een in several different

foster homes. {¶12} The Children were removed from their initial foster placement i n October, 2018, due to concerns the foster parents were using food as pun ishment as well as other concerns about disproportionate punishments. The second placem ent only lasted one month. The first foster parents advised LCJFS Child 2 and Chil d 3 would destroy property, and Child 1 would steal. There had been instances of sexual acting out between Child 1 and Child 2, as well as sexual acting out by Child 2 to ward other children. Child 1 disclosed to a foster sibling Child 1 and Child 2 had sexual intercourse while living with

Mother. Child 1 had told Mother Child 2 had forced himself on her, but Mother shrugged it off as experimenting. Father acknowledged to Palma Ashcraft, the ongoing caseworker assigned to the family, he was aware of the sexual behavior of Child 1 and Child 2. {¶13} The second foster family noted Child 2 was abusive toward Child 1 and Child 3. Child 2 was also physically abusive to another child. Child 1 shut down at the second placement. Child 1 refused to engage in anything, inclu ding going to church, which prevented the foster parents from taking the other childr en to church. Child 1 alsoLickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 6

refused to eat. The second placement could not handle the Chil dren’s behaviors and requested they be removed. {¶14} The Children initially did well in their third placement. Howev er, after school on the third day, Child 2 slammed Child 3’s head into a wall. Child 1 and Child 2 began to argue, which escalated and resulted in Child 1 and Child 2 p unching holes into the wall and breaking a door off its hinges. As of the date of the seco nd hearing, Child 1 was doing well. Child 1 was concern ed she, Child 2, and Child 3 wo uld be removed from the placement due to Child 2 and Child 3’s physical aggression towa rd the foster parents’ biological children. The foster family had given their 30 days ’ notice with respect to Child

2. {¶15} With respect to Maternal Grandmother, the evidence revealed the re were past issues of domestic violence between her and Bruce Lessig, her husband. During one incident, Mother’s older brother was struck in the face. F ranklin County Children’s Services investigated Maternal Grandmother as an alleged perpet rator in October, and December, 1991, and substantiated she was the perpetrator of em otional maltreatment and physical abuse against Mother and her brother. Prior to hi s marriage to Maternal Grandmother, Lessig had been on probation for two years as the result of a domestic violence conviction. LCJFS Caseworker Ashcraft expressed conce rns regarding Lessig’s ability to handle the Children due to his history of domestic v iolence. In addition, Maternal Grandmother and Lessig did not have a complete understanding of the Children’s needs and LCJFS did not believe Maternal Grandmother and Lessig were prepared for the level of commitment they would have to make.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 7

{¶16} Via Decision filed April 19, 2019, the magistrate recommended M other and Father’s parental rights, privileges, and responsibilities with respect to Child 1, Child 2, and Child 3 be terminated. The magistrate also recommended per manent custody of Child 1, Child 2, and Child 3 be granted to LCJFS. The magistra te further recommended Mother's motion requesting legal custody be granted to Maternal Grandmother be denied. The magistrate found LCJFS made reasonable efforts to prevent t he need for removal, but ongoing concerns made the continued removal necessary and w as in the Children’s best interests. The magistrate further found Child 1, Child 2, and Child 3 cannot and should not be placed with Mother or Father within a reasonable time. {¶17} Mother filed objections to the magistrate's decision. Via Judgm ent Entry filed August 2, 2018, the trial court overruled Mother's object ions, terminated Mother's parental rights, privileges, and responsibilities with respect to Child, and granted permanent custody of Child to LCJFS. {¶18} It is from this judgment entry Mother appeals, raising the foll owing assignments of error:

I. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

FINDING BY CLEAR AND CONVINCING EVIDENCE THAT IT WOULD BE IN THE BEST INTERESTS OF L.F., L.F., AND L.F. TO PERMANENTLY

TERMINATE THE PARENTAL RIGHTS OF THEIR PARENTS AND

PLACE THEM IN THE PERMANENT CUSTODY OF LICKING COUNTY JOB AND FAMILY SERVICES, CHILDREN SERVICES DEPARTMENT.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 8

II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION

WHEN IT FOUND BY CLEAR AND CONV INCING EVIDENCE THAT L.F., L.F., AND L.F. COULD NOT BE PLAC ED WITH THEIR MOTHER WITHIN

A REASONABLE TIME OR SHOULD NOT BE PLACED WITH THEIR

MOTHER.

{¶19} This case come to us on the expedited calendar and shall be con sidered in compliance with App. R. 11.2(C). I, II {¶20} In her first assignment of error, Mother contends the trial cou rt erred in finding it was in the Children’s best interest to terminate her parental rights and grant permanent custody to LCJFS. In her second assignment of error, Mother challenges the trial court's finding the Children could not be placed with her within a reasonable time or should not be placed with her. We elect to address both assign ments of error together. {¶21} As an appellate court, we neither weigh the evidence nor judge the credibility of the witnesses. Our role is to determine whether there is relevant, competent and credible evidence upon which the fact finder could base its judgment. Cross Truck v. Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported by some competent, credible evidence going to all the essential el ements of the case will not be reversed as being against the manifest weight of the evidenc e. C.E. Morris Co. v. Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). {¶22} R.C. 2151.414 sets forth the guidelines a trial court must foll ow when deciding a motion for permanent custody. R.C. 2151.414(A)(1) ma ndates the trial courtLickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 9

schedule a hearing and provide notice upon the filing of a moti on for permanent custody of a child by a public children services agency or private chil d placing agency that has temporary custody of the child or has placed the child in long- term foster care. {¶23} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to grant permanent custody of the child to the public or private a gency if the court determines, by clear and convincing evidence, it is in the best interest of the child to grant permanent custody to the agency, and that any of the following apply: (a) the child is not abandoned or orphaned, and the child cannot be placed with eith er of the child's 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; or (d) the child has been in the tem porary custody of one or more public children services agencies or private child placeme nt agencies for twelve or more months of a consecutive twenty-two month period ending on or after March 18,

1999. {¶24} In determining the best interest of the child at a permanent cu stody hearing, R.C. 2151.414(D) mandates the trial court must consider all rel evant factors, including, but not limited to, the following: (1) the interaction and inte rrelationship of the child with the child's parents, siblings, relatives, foster parents and ou t-of-home 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, with due regard for the maturity of the child; (3) the custodial history of the child; and (4) 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.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 10

{¶25} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial court must apply when ruling on a motion for permanent custody. In practice, the trial court will usually determine whether one of the four circumstan ces delineated in R.C. 2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child. {¶26} If the child is not abandoned or orphaned, the focus turns to w hether the child cannot be placed with either parent within a reasonable p eriod of time or should not be placed with the parents. Under R.C. 2151.414(E), the trial c ourt must consider all relevant evidence before making this determination. The trial c ourt is required to enter such a finding if it determines, by clear and convincing eviden ce, that one or more of the factors enumerated in R.C. 2151.414(E)(1) through (16) exist wi th respect to each of the child's parents. {¶27} As set forth in our statement of the facts and case, supra, Mot her failed to complete her case plan services. In fact, Mother made little t o no progress on her case plan. Mother failed to complete her initial intake at Behavior al Healthcare Partners, attending only two sessions. As a result, the therapist was un able to create a treatment plan. Mother failed to undergo drug and alcohol treatment, and admitted to the caseworker she had used methamphetamine a week prior to the sec ond hearing. Mother failed to obtain and maintain stable housing and employment. M other failed to address

domestic violence concerns. She continued to have contact with Father despite an active CPO against him. Mother had a felony forgery charge which was pending at the time of the second hearing.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 11

{¶28} The Children all have special needs. Child 1 has adjustment di sorder with disturbance of conduct. Child 1 is not prescribed medication. Although LCJFS is trying to engage Child 1 in counseling, Child 1 refuses to cooperate. Child 2 has ADHD as well as conduct disorder, disruptive mood disorder, and intermittent explosive disorder. Child 2 is prescribed medication and attends counseling. Child 3 has ADHD, disruptive mood disorder, and dysregulation disorder. Child 3 is prescribed me dication, but does not attend counseling. The Children are very defiant. They have b een in several different foster homes. The current foster parents are willing to keep C hild 1 and Child 3. They are unable to handle Child 2. Mother acknowledged she was not in the position to care for the Children. Maternal Grandmother’s home proved not to be a viable option. {¶29} Based upon the foregoing, we find the trial court's finding it was in the best interest of the children to grant permanent custody to LCJFS is not against the manifest weight of the evidence. We further find the trial court's find ing Child 1, Child 2, and Child 3 could not be placed with Mother within a reasonable period of time or should not be placed with her is not against the manifest weight of the evide nce. {¶30} Mother’s first and second assignments of error are overruled.Lickin g Count y , Case Nos. 2019CA0064, 2019CA0065, 2019CA0066 12

{¶31} The judgment of the Tuscarawas County Court of Common Pleas, Ju venile Court, is affirmed.

By: Hoffman, P.J. Gwin, J. and Baldwin, J. concur