[Cite as In re K.P., 2024-Ohio-2794.]

Appeal From: Hamilton County Juvenile Court

 

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 24, 2024

Jon R. Sinclair, for Appellant Mother,

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paul DeMott, 

Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and 

Family Services,

Pro Kids, Inc., and Donita Parrish, for the Guardian ad Litem for the Children.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

IN RE: P, S, M CHILDREN :

:

:

APPEAL NO. C-240251

TRIAL NO. F20-449X

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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WINKLER, Judge.

{¶1} Appellant mother appeals from the decision of the Hamilton County 

Juvenile Court granting permanent custody of her four children to the Hamilton 

County Department of Job and Family Services (“HCJFS”). We find no merit in her 

sole assignment of error, and we affirm the juvenile court’s judgment. 

{¶2} The record shows that on April 29, 2020, HCJFS was granted a 

telephone ex parte emergency order for K.P., B.S., P.M., and E.M. The following day, 

the juvenile court granted interim custody to HCJFS, and HCJFS filed a complaint 

seeking temporary custody of the children. The complaint stated that K.P.’s father was 

not involved in her life. A.M. was the father of the other three children. On April 28, 

2020, mother and A.M. had engaged in a physical altercation in the children’s 

presence. A.M. had dragged K.P. by her hair during that altercation. As a result, he 

was charged with domestic violence and resisting arrest. He was incarcerated at the 

time the complaint was filed.

{¶3} Additionally, the complaint alleged that on April 29, 2020, police 

responded to mother’s residence because mother and the three youngest children were 

reported missing. Mother had contacted K.P. and another child, who subsequently 

turned 18, and reported “suicidal ideations” involving herself and the children. She 

had admitted being depressed and that she and A.M. became combative when they 

drank alcohol. Mother was transported to the hospital and admitted as a psychiatric 

admission. 

{¶4} On October 2, 2020, the children were adjudicated abused and 

dependent and placed in the temporary custody of HCJFS. The court ordered mother 

to complete a diagnostic assessment, engage in substance-abuse treatment, maintain 

stable housing and income, engage in a domestic-violence assessment, complete drug 

screens, and visit the children regularly. It also approved a previously filed case plan. 
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{¶5} The case plan provided for supervised visitation between mother and 

the four children once a week for four hours and permitted telephone contact between 

mother and K.P. Mother did not make contact or visit with her children after they 

were removed from her home. She was incarcerated between November 21, 2021, and 

October 12, 2022, and no evidence was presented showing that she had made any 

efforts to contact or visit the children during that time. 

{¶6} On April 4, 2022, HCJFS filed a motion to modify temporary custody 

to permanent custody. It alleged that mother was homeless, she had no stable income 

or housing, she did not visit her children, she had not maintained contact with HCJFS, 

and she had been arrested several times on harassment charges. It also alleged that 

mother had made little effort to get sober, and she had not stayed in drug treatment 

longer than a few days.

{¶7} At the hearing on the motion, the caseworker for the family starting in 

January 2022, testified. He said the case was initiated due to concerns about the 

parents’ drug use and domestic violence, as well as mother’s threat to kill her children. 

Mother was asked to do a diagnostic assessment, drug screens, and complete drug 

treatment. He received no evidence that she had completed drug treatment. Mother 

acknowledged to him that she had relapsed in December 2022. In 2023, mother tested 

positive for opiates, as expected, but also for alcohol, Gabapentin, and 

benzodiazepines. 

{¶8} At the time of the hearing, mother was only visiting the two youngest 

children, E.M. and P.M., who were both very young when they were removed from 

mother’s custody. Neither of them showed any signs of bonding with mother during 

their visits. K.P. refused to visit her mother, and B.S.’s therapist recommended that 

visitation with mother be suspended because it was traumatic for the child. 
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{¶9} The caseworker reported that the foster family that had provided care 

for all four children intended to pursue adoption. The children had a strong bond with 

each other and with their foster parents. None of them expressed a desire to return to 

mother’s care. To the contrary, the two oldest children had specifically stated that they 

did not want to live with mother and they wanted to remain with the foster parents. 

Two of the children had special needs, but all were thriving under the care of the foster 

family.

{¶10} Mother testified that at the time of the hearing, she was living with her 

adult son, G.P., who was a minor at the time of the initial complaint, and his girlfriend. 

They did not have custody of their own children due to “domestic-violence issues.” 

Mother stated that they would soon be moving to a new residence. Due to a previous 

eviction, mother needed a co-signer on the lease. David Wallace, whom mother 

described as a family friend, co-signed the lease. Although by virtue of his name on 

the lease Wallace was permitted to live in the home, mother stated that he was not 

living with her. HCJFS was not able to assess whether it was appropriate for him to 

be around the children. 

{¶11} Mother acknowledged that she did not visit her children from 

November 2021 through October 2022 because she had been in jail and, before her 

incarceration, because of her drug addiction. She stated that she was visiting the two 

youngest children. She agreed with the caseworker that the children were bonded with 

each other, and that the four children should stay together regardless of the outcome 

of the case. Mother testified that she had been involved in the foster-care system when 

she was a minor. She said that she had known the foster family since 2004, and she 

said that she had no issues with the care the foster family had provided.
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{¶12} Mother also described her long history of opioid abuse. She stated that 

she had been using suboxone since 2012 to medically treat her condition. Due to a 

substantial dental surgery in September 2023, she was prescribed seven different 

medications, including opioids. She claimed that those drugs resulted in positive drug 

screens. She also used alcohol at that time. 

{¶13} When mother was released from jail in October 2022, she obtained 

employment at Talbert House as a suicide-prevention specialist. She provided pay 

stubs and training certificates to prove this employment. She stated that she had 

recently been promoted. Child support was taken out of her paychecks. She told the 

court that she was ready to have the children returned to her care. 

{¶14} As to the fathers of the children, K.P.’s father was not involved in his 

child’s life. He was absent from the juvenile court proceedings and “has demonstrated 

no willingness to provide for his child’s needs or protection.” A.M., the father of the 

other three, was incarcerated during the proceedings and was released shortly before 

the permanent-custody hearings. He testified that at that time, he was not able to take 

care of his children full time, but he supported mother’s desire to have the children 

returned to her due to the positive changes she had made in her life.

{¶15} On December 1, 2023, the magistrate issued a decision granting 

HCJFS’s motion for permanent custody. Mother filed objections to the magistrate’s 

decision. Subsequently, the children’s guardian ad litem (“GAL”) and court appointed 

special advocate (“CASA”) filed a response stating that they agreed with the 

magistrate’s decision. They added, “[i]t is in the best interest of the children to be 

placed in the permanent custody of HCJFS, where they can achieve permanency.” The 

juvenile court denied mother’s objections, approved and adopted the magistrate’s 
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decision, and awarded permanent custody of the children to HCJFS. This appeal 

followed.

{¶16} In her sole assignment of error, mother contends that the trial court 

erred by granting HCJFS’s motion for permanent custody of the children. She argues 

that the trial court’s decision was not supported by sufficient evidence and was against 

the manifest weight of the evidence. This assignment of error is not well taken. 

{¶17} We first note that R.C. 2151.414, the applicable statute, was amended 

effective April 3, 2023. The amendment made only minor changes. Courts should 

apply the version of the statute in effect at the time the motion for permanent custody 

was filed. In re M., R., & H. Children, 1st Dist. Hamilton No. C-170008, 2017-Ohio1431, ¶ 15. The motion for permanent custody was filed on April 4, 2022, so we apply 

the version of the statute in effect at that time.

{¶18} Former R.C. 2151.414(B) provided that the juvenile court could grant 

permanent custody of a child to a public children services agency if it found by clear 

and convincing evidence that (1) permanent custody was in the child's best interest 

and (2) one of the conditions in former R.C. 2151.414(B)(1)(a) through (e) applied. In 

re Z.C., 173 Ohio St.3d 359, 2023-Ohio-4703, 230 N.E.3d 1123, ¶ 11. In re D.V., 1st 

Dist. Hamilton No. C-220423, 2022-Ohio-4602, ¶ 16. The juvenile court found and 

mother concedes that the children had been in the custody of HCJFS for more than 12 

months of a consecutive 22-month period. Therefore, the condition in former R.C.

2151.414(B)(1)(d) was met. Clear and convincing evidence supported this finding. 

Though the trial court addressed the other conditions in former R.C. 2151.414(B)(1), 

we need not determine whether any of the other conditions apply. In re D.V. at ¶ 16.

{¶19} Next, the trial court must determine whether a grant of permanent 

custody is in the children’s best interest. In re P. & H. Children, 1st Dist. Hamilton 
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Nos. C-190309 and C-190310, 2019-Ohio-3637, ¶ 35. That finding can be mandatory 

or discretionary. Former R.C. 2151.414(D)(1) and 2151.414(D)(2) were “alternative 

means for reaching the best-interest determination.” In re J.P., 10th Dist. Franklin 

No. 18AP-834, 2019-Ohio-1619, ¶ 40.

{¶20} Former R.C. 2151.414(D)(2) set forth a list of circumstances that, if all 

were found to exist, mandated a finding that permanent custody was in the best 

interest of the child. In re R.D., 8th Dist. Cuyahoga No. 111798, 2022-Ohio-4519, ¶ 50. 

If all of the requirements of former R.C. 2151.414(D)(2) are satisfied, the juvenile court 

must grant the motion for permanent custody. In re K.T.1, 2018-Ohio-4312, 121 

N.E.3d 847, ¶ 74 (1st Dist.). The juvenile court found that all four of these conditions 

were met. 

{¶21} Under former R.C. 2151.414(D)(2)(b), one of the conditions was that 

“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.” We find no case law specifically addressing how the two-year time 

period should be calculated. The 12-of-22 condition set forth in former R.C. 

2151.414(B)(1) is determined from the date the child enters the temporary custody of 

the public children services agency until the date the motion for permanent custody is 

filed. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 24 and 

28; In re D.M., 1st Dist. Hamilton No. C-200043, 2020-Ohio-3273, ¶ 42. If we use the 

same analysis, then the condition was not met. The children entered temporary 

custody of HCFJS on April 30, 2020. The motion for permanent custody was filed on 

April 2, 2022, just a few weeks short of two years. 

{¶22} But we need not determine the proper method of calculating the twoyear time period. Even if we assume that that condition was not met, “[i]f * * * any of 
OHIO FIRST DISTRICT COURT OF APPEALS

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the circumstances enumerated in R.C. 2151.414(D)(2) does not exist, then the juvenile 

court must proceed to a weighing of factors set forth in R.C. 2151.414(D)(1)” to 

determine the child’s best interest. In re R.D. at ¶ 51. The trial court examined the 

factors in R.C. 2151.414(D)(1) and determined that under those factors, a grant of 

permanent custody to HCJFS was in the children’s best interest.

{¶23} Mother takes issue with the trial court’s finding that she had abandoned 

her children. Former R.C. 2151.011(C) stated that “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.”

{¶24} The record shows that mother did not contact or visit with the children 

after they were moved from her home on April 30, 2022, due to her drug abuse. 

Afterward, she was incarcerated for approximately nine months, during which she did 

not maintain contact with her children. We agree with the magistrate when she 

stated, “There is no evidence presented that mother made any efforts to remain in 

contact with her children, in any manner, during any of these periods of time.” Thus, 

the evidence showed that mother had failed to visit the children for a period longer 

than 90 days, regardless of when she began contact later. Mother also failed to support 

the children for over 90 days. Her pay stubs show that she did not begin supporting 

her children until the summer of 2023. 

{¶25} Mother further argues that under R.C. 2151.414(D)(1), the trial court did 

not consider all the relevant factors because it failed to consider and give appropriate 

weight to her employment at Talbert House and the fact that she had maintained 

sobriety for a significant amount of time. She argues that under former R.C.
OHIO FIRST DISTRICT COURT OF APPEALS

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2151.414(D(1)(d), a legally secure placement could have been achieved by remanding 

the children to mother with protective orders. 

{¶26} The magistrate recognized that mother had engaged in some case-plan 

services and has made some progress. But the dispositive issue is not whether mother 

has complied with the case plan, but whether she had remedied the conditions that 

caused the children to be removed from the home. A parent’s compliance with the 

case plan does not preclude a trial court from awarding custody to a children services 

agency, as long as it is in the child’s best interest. In re J.G.S., 1st Dist. Hamilton Nos. 

C-180611 and C-180619, 2019-Ohio-802, ¶ 39. The evidence showed that mother still 

has problems with sobriety, housing, and mental health, supporting the magistrate’s

determination that she had not remedied the conditions that caused the children to be 

removed from the home, and that she could not provide a legally secure placement for 

them.

{¶27} Clear and convincing evidence supports the trial court’s determination 

that granting permanent custody was in the children’s best interest. Therefore, the 

evidence was sufficient to support the award of permanent custody to HCJFS. See In 

re D.V., 1st Dist. Hamilton No. C-220423, 2022-Ohio-4602, at ¶ 18; In re A.B., 1st 

Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15. 

{¶28} Further, after reviewing the record, we cannot hold that the trial court 

lost its way and created such a manifest miscarriage of justice that we must reverse the 

judgment and order a new trial. Therefore, the judgment was not against the manifest 

weight of the evidence. See Eastly v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 

972 N.E.2d 517, ¶ 12; In re P. & H. Children, 1st Dist. Hamilton Nos. C-190309 and C190310, 2019-Ohio-3637, at ¶ 7. We overrule mother’s assignment of error and affirm 

the trial court’s judgment. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Judgment affirmed.

BERGERON, P.J., and CROUSE, J., concur.

Please note:

The court has recorded its own entry this date.