[Cite as In re A.D. , 2022-Ohio-232.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY In re A.D., T.D., S.R. Court of Appeals No. L-21-1156 Trial Court No. JC21283204

DECISION AND JUDGMENT Decided: January 27, 2022 * * * * * Bradley W. King, for appellee. Laurel A. Kendall, for appellant. * * * * * ZMUDA, J.
I. Introduction {¶ 1} This matter is before the court on appeal of the August 10, 202 1 decision of the Lucas County Court of Common Pleas, Juvenile Division, term inating the parental rights and responsibilities of appellant, E.D., the mother of A .D., T.D., and S.R., and2. granting permanent custody of A.D., T.D., and S.R. to Lucas Cou nty Children Services. For the reasons that follow, we affirm. II. Facts and Procedural Background {¶ 2} On February 18, 2021, Lucas County Children Services (LCCS) fil ed a complaint in dependency, abuse, and neglect for A.D., born Febr uary 14, 2014, T.D., born January 2, 2015, and S.R., born July 2, 2017. The complai nt was a refiling, following dismissal of Lucas County juvenile case No. 18268508 involving A.D., T.D., and S.R., and three of their older, half-siblings. In case No. 18268508 the juvenile court found T.D. to be an abused child and appellant’s other children to be dependent children. The children were removed from appellant’s custody on June 22, 2018. The father of the three oldest siblings obtained custody of his children. After completing case plan services, appellant was reunited with A.D., T.D., and S.R. on A ugust 3, 2020. {¶ 3} On February 18, 2021, the children were removed from appellant’ s custody once more and LCCS filed the current complaint seeking original permanent custody, noting the protective supervision under the prior case and a ne w domestic violence incident. On May 3, 2021, the juvenile court held a hearing an d found the children to be dependent children. Appellant did not appeal this determinatio n. On June 18, 2021, the juvenile court held a trial on the motion for permanent custody . Appellant appeared at trial with counsel, as did A.R., the father of T.D. and S.R.3. {¶ 4} The court heard testimony of the case workers, appellant, A.R., and the court-appointed guardian ad litem. The guardian ad litem’s rep ort was admitted as evidence. The juvenile court also admitted appellant’s Toledo Municipal Court records over appellant’s objection. {¶ 5} The caseworkers testified that appellant has a long history wit h LCCS, dating back to 2007, and had previously lost custody of five ot her children, half siblings of A.D., T.D., and S.R. Throughout cases filed in 2007, 2008, 2013, 2014, 2015, and 2018, appellant’s case plan services consistently included dome stic violence counseling, mental health assessment and treatment, and maintaining stable housing. 1 {¶ 6} In the current case, the case workers noted appellant’s ongoing failure to remedy the same issues. Appellant has a history of volatile re lationships, and has been the aggressor in some instances, including an incident of exces sive punishment against T.D., prompting the filing of the 2018 case. The children have also witnessed domestic violence between their parents, including the February 2021 inc ident that, in part, led to the current case. {¶ 7} Appellant also has mental health diagnoses, but her ambivalent attitude toward therapy and her inconsistency in taking medications prev ented her from sustaining progress with her mental health. Appellant’s attitu de toward therapy also

1 The juvenile court reviewed the prior cases, Lucas County juve nile case Nos. 07134858, 07172497, 08189341, 13233749, 14238402, 15245111, and 18268508.4. presented barriers in providing the children with mental health services, despite appellant’s acknowledgment that counseling would be helpful to address behavioral issues of the children during periods in which appellant felt o verwhelmed. Appellant did not seek counseling for her children while they were in her cus tody, believing individual therapy unnecessary despite the traumas her children had experi enced due to witnessing domestic violence and the circumstances leading to the dependen cy determinations. {¶ 8} Finally, appellant demonstrated an inability to secure a stable home for the children despite the efforts of caseworkers and advocates to ai d her. Shortly after reunification in August 2020, appellant was evicted in December 2020 after several months of unpaid rent following the loss of her FedEx job. 2 Appellant had also stopped sending the children to protective daycare and school around th e time of eviction, and the school withdrew the children for non-attendance at the end of J anuary 2021. After moving, appellant did not immediately notify LCCS of her addres s at T.D. and S.R.’s paternal grandparents’ home where appellant and the children re sided until February 2021, when LCCS removed the children. For the duration of the current case, appellant declined to disclose her current address or phone number to her caseworker until the date

2 The record is unclear as to the date appellant lost her job, a s there was testimony she lost her job after getting injured in March 2020, or shortly af ter reunification in August 2020.5. of trial, and her current address was with a cousin who had pre viously been denied as a potential placement for the children. {¶ 9} Appellant testified and did not dispute the circumstances and e vents described by caseworkers, including the domestic violence, evic tion, and failure to address mental health issues that precipitated the present case . Instead, she emphasized steps taken in the weeks leading up to trial regarding renewed efforts to address her mental health issues and her belief that the children need fami ly counseling, continuing to resist the recommended individual counseling for each child. S pecifically, she challenged the failure of LCCS to enroll her children in counse ling, arguing such failure reinforced her opinion that counseling was not necessary while ignoring the fact that her children were “disrupted” out of two placements due to their be havioral issues, including suicidal ideation for one of the children. {¶ 10} As to a stable home, appellant testified she has provided a sta ble environment for her children, downplaying her history of unstab le housing as mere “setbacks.” Significantly, appellant acknowledged that the oldest of the children, A.D., has lived in four separate homes with her, in addition to the exten sive time spent in foster placements, over the span of her 7 years. Appellant testified she had not yet secured housing, but had leads on potential housing and had been saving money in anticipation of moving into her own home. She also admitted that the 2020 evic tion proceedings were causing issues with more traditional lease applications.6. {¶ 11} Finally, appellant addressed her history of domestic violence a s not “bad,” and justified her behavior, stating: I don’t put up with bull crap in front of my kids, period, from nobody. So call it domestic violence or whatever you want. My kids don’t see me as an aggressor. My kids see me as right. You don’t pu t up from [sic] bull crap from not a soul in this world, period. {¶ 12} The guardian ad litem testified that she has been assigned to t he three children since May 2018, having been appointed during the prior case and then again for the current case. Based on her investigations and interactions with the parents and children, the guardian ad litem recommended permanent custody o f the children with LCCS. She testified regarding the children’s behavioral issues , resulting from the traumas of unstable housing and living with domestic violence. The guardian ad litem’s report was entered into evidence, and noted appellant’s history of violent relationships and prior parental terminations as to her five older children. Throughout appellant’s history with LCCS, the primary issues raised and not satisfacto rily addressed have been appellant’s mental health, her lack of stable housing, and dome stic violence. {¶ 13} In recommending permanent custody, the guardian ad litem summar ized her conclusions regarding the best interests of the children as follows: These children have been in and out of care for a significant p eriod of their young lives. [S.R.] has spent almost all of her life in care. The parents7. have done some services. They have made efforts, but we seem t o come back to the same place over and over again. And I think at som e point we just have to draw the line and say that it isn’t working, and u nfortunately I think we’re at that point. {¶ 14} After taking the matter under advisement, the juvenile court gr anted the motion for permanent custody by written entry on August 10, 202 1. The juvenile court considered the testimony and exhibits, and after noting appella nt’s lengthy history and prior termination proceedings for older siblings, determined pe rmanent custody for LCCS to be in the best interests of A.D., T.D., and S.R. 3 While noting the efforts appellant made immediately leading up to trial, the juvenile court deemed those efforts to be “too little, too late.” {¶ 15} Appellant filed a timely appeal of the judgment. III. Assignments of Error {¶ 16} Appellant raises the following assignments of error in challeng ing the termination of her parental rights: I. The trial court’s finding pursuant to R.C. 2151.414(E)(1) t hat mother failed continuously and repeatedly to substantially reme dy mother’s mental and emotional health issues thereby causing the children to be

3 The juvenile court made this determination as to the father of A.D. and the father of T.D. and S.R., too, and neither father has appealed the decisio n.8. placed outside the children’s home was not supported by clear a nd convincing evidence. II. The trial court’s finding pursuant to R.C. 2141.414(E)(2) that mother’s mental and emotional health issues are so chronic, sev ere and persistent that it makes her unable to provide an adequate perm anent home for the children at the present time and, as anticipated, withi n one year after the court holds the hearing was not supported by clear and conv incing evidence. III. The trial court’s finding pursuant to R.C. 2151.414(E)(4) that mother has demonstrated a lack of commitment toward the childre n by failing maintain [sic] the children’s school enrollment and by not following through with counseling for the children was not supported by c lear and convincing evidence. IV. The trial court’s finding pursuant to R.C. 2151.414(E)(14) that mother is unwilling to provide shelter for the children by fail ing to provide an adequate permanent home was not supported by clear and convi ncing evidence. IV. Analysis {¶ 17} Appellant challenges the award of permanent custody to LCCS, ar guing a lack of clear and convincing evidence that termination of paren tal rights would be in the9. children’s best interest. She also argues that LCCS had no bas is to remove the children in 2020, because she was successfully reunited with the childre n after completing her case plan in the 2018 case and LCCS “reneged on an agreed two-m onth window” during the final review hearing in case No. 18268508 for appellant to re-enroll the children in daycare and school, initiate counseling for the children, re-en gage in counseling for herself, and secure a new job and long-term housing. 4 Appellant fails to address any finding by the juvenile court regarding domestic violence. {¶ 18} In reviewing a decision to terminate parental rights in a perma nent custody case, we will not reverse unless we find the decision is agains t the manifest weight of the evidence. In re D.T., 6th Dist. Lucas No. L-20-1019, 2020-Ohio-2968, ¶ 19, citing In re A.H., 6th Dist. Lucas No. L-11-1057, 2011-Ohio-4857, ¶ 11 (additional citation omitted.). Reversal is proper only after the reviewing court “ weighs the evidence and all reasonable inferences, considers the credibility of the witness es and determines whether in resolving conflicts in the evidence, the [trier of fact] cle arly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” (Citation omitted) State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

4 Appellant cites to no portion of the record containing any agr eement for a two-month window.10. {¶ 19} The juvenile court, as the trier of fact, is best positioned to weigh evidence and evaluate testimony, and therefore must be afforded “every r easonable intendment and every reasonable presumption * * * in favor of the judgment and the finding of facts.” In re C.R., 6th Dist. No. L-20-1195, 2021-Ohio-1969, ¶ 32, citing In re Brown, 98 Ohio App.3d 337, 342, 648 N.E.2d 576 (3d Dist.1994); Eastley v. Volkman, 132 Ohio St.3d 328, 2021-Ohio-2179, 972 N.E.2d 517, ¶ 21 (additional citation omitted.). A juvenile court must find, by clear and convincing evidence, that termina ting parental rights and awarding permanent custody to a children services agency satisf ies the permanent custody test set forth in R.C. 2151.414. In re Katrina T., 6th Dist. Sandusky No. S-03- 024, 2004-Ohio-3164, ¶ 13. Clear and convincing evidence is de fined as “that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonabl e doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 20} The two-part test of R.C. 2151.414 requires the juvenile court to find, by clear and convincing evidence, that: (1) that the child is abandoned, orphaned, has been in the temp orary custody of the agency for at least 12 of the prior 22 months, o r cannot be11. placed with either parent within a reasonable time or should no t be placed with either parent, based on the analysis under R.C. 2151.414(E ); and (2) that the grant of permanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414 (D). In re A.J., 6th Dist. Lucas No. L-16-1258, 2017-Ohio-1392, ¶ 24, citing R.C

. 2151.414(B)(1) and 2151.414(B)(2); In re R.V ., 6th Dist. Lucas Nos. L-10-1278 and L10-1301, 2011-Ohio-1837, ¶ 17; see also In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio5513, 857 N.E.2d 532, ¶ 33-36, 56. {¶ 21} The juvenile court first determined that the children had been in the temporary custody of LCCS “for well over 12 months of the past 22 months” and were in the home of appellant “for less than seven months in the past 2 2 months[.]” The juvenile court further determined that “[t]here is no reasonable likelih ood that the circumstances will change in favor of placing the children with either parent within any reasonably foreseeable time.” In granting permanent custody to LCCS, the juvenile court referenced the factors under R.C. 2151.414(E)(1), (2), (4), (14), and (16)

. 5 These provisions are as follows:

5 The juvenile court also referenced R.C. 2151.414(E)(10), “The parent has abandoned the child.” This appears to pertain only to the putative fathe r of A.D., who did not appear for trial or at any point in the proceedings despite notice. A dditionally, the juvenile court referenced R.C. 2151.414(E)(16), the “any other reason” provisi on, but did not expressly state an additional reason.12. (1) Following the placement of the child outside the child’s ho me and notwithstanding reasonable case planning and diligent effor ts by the agency to assist the parents to remedy the problems that initia lly caused the child to be placed outside the home, the parent has failed cont inuously and repeatedly to substantially remedy the conditions causing the c hild to be placed outside the child’s home. In determining whether the par ents have substantially remedied those conditions, the court shall consid er parental utilization of medical, psychiatric, psychological, and other s ocial and rehabilitative services and material resources that were made a vailable to the parents for the purpose of changing parental conduct to all ow them to resume and maintain parental duties. (2) Chronic mental illness, chronic emotional illness, intellec tual disability, physical disability, or chemical dependency of the parent that is so severe that it makes the parent unable to provide an adequat e permanent home for the child at the present time and, as anticipated, wit hin one year after the court holds the hearing pursuant to division (A) of t his section or for the purposes of division (A)(4) of section 2151.353 of the Revised Code;
* * *13. (4) The parent has demonstrated a lack of commitment toward the child by failing to regularly support, visit, or communicate wi th the child when able to do so, or by other actions showing an unwillingnes s to provide an adequate permanent home for the child;
* * * (14) The parent for any reason is unwilling to provide food, cl othing, shelter, and other basic necessities for the child or to preven t the child from suffering physical, emotional, or sexual abuse or physical, emo tional, or mental neglect. (16) Any other factor the court considers relevant. {¶ 22} Appellant challenges only the juvenile court’s findings under R .C. 2151.414(E), raising similar arguments regarding the weight of the evidence supporting those findings. The assignments of error can be summarized as challenging the juvenile court’s finding that appellant failed to maintain housing, resu lting from either conditions not remedied (assignment of error one), appellant’s mental illn ess (assignment of error two), or appellant’s unwillingness (assignment of error four), and challenging the finding that appellant demonstrated a lack of commitment toward her chi ldren (assignment of error three). As the issues and facts are interrelated, we add ress the assignments of error together.14. {¶ 23} In awarding permanent custody of A.D., T.D., and S.R. to LCCS, the juvenile court provided numerous factual findings in support. The juvenile court noted that “issues leading to removal of the children from the custod y of their mother, [appellant], have been essentially the same since 2007, to wit: lack of stable housing; noncompliance with needed mental health services; and domestic violence.” The juvenile court further found that appellant had significant men tal health issues and had not “followed through on a consistent and needed basis with men tal health treatment.” As to the issues leading up to removal of the children and the present complaint for permanent custody, the juvenile court found: According to the Guardian ad litem, shortly after reunification last August, [appellant] lost her job which led to her eviction. Fu rther, [appellant] stopped engaging in mental health treatment and did not insure that the children were going to school which was online during COVID-19. The school-age children were withdrawn from school for non-atte ndance after it was discovered by the school assistant principal that the house where the children were supposed to be residing was vacant. Fu rther, the phone number provided to school officials was a nonworking numb er. It was also reported that a computer provided to the children by t he school was lost. [Appellant] failed to keep the children in their cou nseling services. Further, [appellant] did not contact the Guardian ad litem or her15. caseworker to seek help and/or to keep the Guardian ad litem an d the caseworker informed as to her whereabouts and the status of the children with respect to counseling and schooling. On January 13, 2021, the Court held a review hearing in case number 18268508 at which [appella nt] failed to appear. The Court became aware that [appellant] had been fe eling overwhelmed, that she had no cell service for her phone for sev eral weeks and that she was being evicted from her residence. Further, th e caseworker believed that the children had not been attending daycare consi stently as was arranged and required in the case plan. At that hearing on January 13, 2021, the Court ordered LCCS and the Guardian ad litem to obtai n documentation of the children’s school progress, their school a ttendance, their daycare attendance, their service(s) participation/attend ance, and the status of mother’s pending eviction. That information was to b e brought to Court for another review hearing which was scheduled for on [si c] February 17, 2021. LCCS subsequently became aware of several other serious and immediate concerns for the children’s well-being. These concer ns, as outlined in the testimony before the Court on February 17, 2021 , included severe absences from school, failing to attend protective dayca re, unstable housing, and a lack of participation in counseling services for both16. [appellant] and her three youngest children. Based on these ne w concerns for the family and the children, the Court issued an ex parte a ward of emergency custody to LCCS. Consequently, LCCS filed the Compla int in this case (JC No. 21283204) on February 18, [2021] in which LCC S has requested permanent custody of AD, TD, and SR. Based on these and other facts, determined at trial, the juveni le court considered the R.C. 2151.414(E) provisions and found, as follows: It does not appear as though either parent is likely to become capable of caring for these children within a reasonable period of time . [Appellant] continues to have mental health problems and has failed reasona bly or effectively to address those problems. [Appellant’s] mental an d emotional health issues are so chronic, severe, and persistent that it ma kes her unable to provide an adequate permanent home for her children at the p resent time, and, as anticipated, she will be unlikely to do so within one y ear after the date of this hearing. [Appellant] has consistently and repeate dly failed to remedy in a substantial manner the conditions causing these chi ldren to be placed outside of her home. [Appellant] has also demonstrated a lack of commitment towards these children by failing to properly school the school-age children and by not following through with counselin g for the children. Further, [appellant] has shown no willingness or abi lity to17. provide an adequate permanent home for these children. * * * T he parents both testified that they are now moving forward on many of the case plan goals and objectives. However, it can be said that both partie s have done too little, too late. {¶ 24} Within her assignments of error, appellant argues she made sure her children were never homeless while they were with her, and she has always been willing to provide them a home. In support, appellant highlights her e fforts to seek out shelters, relatives, and other housing options to avoid homelessness. Ho wever, appellant appears to define “stable housing” as including all arrangements short of homelessness. {¶ 25} Based on the record, appellant was evicted from her home after falling several months behind in her rent. She arranged a month-to-mon th situation with A.R.’s parents while she looked for a new place to live. The guardian ad litem and caseworkers were given little notice of the impending eviction, and appella nt did not keep them informed of her move. After the children were removed from her custody, appellant herself acknowledged her difficulties in finding a new home at trial, based on a prior eviction. At the time of trial, appellant presented no evidenc e of housing, but instead was residing with a relative who had been denied as a placement for A.D., T.D., and S.R. {¶ 26} Appellant also did not demonstrate any commitment to addressing her mental health issues. She admitted to her diagnoses, but also argued she did not need individual counseling and could better handle her issues by her self. In minimizing her18. mental health issues, appellant argued that these issues did no t cause her children to be homeless, without addressing the issue of her ability to provid e stable housing within the year. The juvenile court, however, found appellant’s attitude toward her mental health issues to demonstrate an impediment to a permanent home and to demonstrate appellant’s unwillingness to provide her children with a stable home. {¶ 27} In addition to the housing issue, appellant argues that she wou ld have reenrolled the children in school and daycare had they not been r emoved the day after the final review hearing, believing she had a “window” to do so. T herefore, appellant argues, her failure to re-enroll the children could not be interpreted as a lack of commitment as stated at R.C. 2151.414(E)(4). However, R.C. 2151.414(E)(4) ma kes no mention of schooling or counseling for the child, but instead addresses fa ctors pertaining to the parents that would lead a court to believe reunification is possible “ within a reasonable time.” To the extent appellant argues a future desire to compl y with schooling and counseling objectives, therefore, such argument has no bearing on the juvenile court’s finding under R.C. 2151.414(E)(4). 6

6 While not argued by appellant, schooling, daycare, and counsel ing could be considered “other basic necessities” as listed at R.C. 2151.414(E)(14). T he record is replete with evidence of appellant’s unwillingness to engage mental health s ervices for her children as recommended, and would also support an inference that appellant was unwilling to send the children to school or protective daycare.19. {¶ 28} The juvenile court found R.C. 2151.414(E)(1), (2), (4), and (14 ) applied, and the record supports this finding by clear and convincing ev idence. Based on the record, including appellant’s own testimony, appellant failed “ continuously and repeatedly” to remedy three issues: lack of stable housing, la ck of consistent mental health treatment, and domestic violence. Appellant’s mental he alth issues, moreover, were demonstrated as “so severe” that it prevented appellant fr om providing “an adequate permanent home” within the year. Appellant’s attitude toward h er mental health treatment also “demonstrated a lack of commitment” toward and u nwillingness to provide stable housing. This attitude, finally, manifested as apathy and noncompliance regarding the recommended mental health treatment for her child ren. {¶ 29} Therefore, upon due consideration of the record, we find the ju venile court’s judgment awarding permanent custody to LCCS was support ed by clear and convincing evidence. Appellant’s assignments of error are not well-taken.
III. Conclusion {¶ 30} Having found that the juvenile court committed no error prejudi cial to appellant, and that substantial justice has been done, we affir m the judgment of the Lucas County Court of Common Pleas, Juvenile Division. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed.20. In re A.D., T.D., S.R. Case No. L-21-1156

A certified copy of this entry shall constitute the mandate pu rsuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. ___________________________ _ JUDGE Thomas J. Osowik, J.

____________________________ Gene A. Zmuda, J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.