[Cite as In re R.H. , 2021-Ohio-458.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re R.H. Court of Appeals No. L-20-1158 Trial Court No. JC 18272297

DECISION AND JUDGMENT Decided: February 19, 2021

* * * * * Laurel A. Kendall, for appellant. Bradley W. King, for appellee.

* * * * * ZMUDA, P.J.

I. Introduction {¶ 1} This matter is before the court on appeal of the August 20, 202 0 decision of the Lucas County Court of Common Pleas, Juvenile Division, term inating the parental rights and responsibilities of appellant, T.L., the mother of R .H., and granting permanent custody of R.H. to Lucas County Children Services. For the rea sons that follow, we

affirm.2. II. Facts and Procedural Background {¶ 2} R.H. was born on November 1, 2018. On December 20, 2018, appel lee Lucas County Children Services (LCCS) filed a complaint in depe ndency and neglect, and the trial court granted temporary custody of R.H. to LCCS. Appellant did not attend the emergency shelter care hearing. {¶ 3} LCCS offered case plan services to both parents. After receivi ng an initial assessment, father did not participate with the case services o ffered. Although appellant did complete an assessment, she failed to sign all necessary re leases, and the LCCS caseworker and the guardian ad litem had insufficient access to information. Appellant failed to complete substance abuse services. By her own admiss ion, appellant was unsuccessful in completing her case plan services {¶ 4} Appellant also had trouble maintaining housing. She did have h er own apartment for a period, but was evicted. Appellant lived in a shelter when she gave birth, and lived with her mother after R.H. was born. Additionally, a ppellant lived with various friends, R.H.’s father, and she claimed to be staying at the YW CA, which was untrue. While appellant lived with R.H.’s father, she was arrested for domestic violence. {¶ 5} Appellant’s visitation with R.H. was inconsistent. She claimed to have issues with transportation, but she also canceled if the weathe r was too hot, too cold, too wet, or she failed to show up because she forgot about the sche duled visit. When appellant did see R.H., the guardian ad litem expressed concern s with her behavior, noting one occasion in which appellant angrily forced R.H. into too-tight clothing that the3. foster parents returned because it was the wrong size, and anot her in which appellant picked R.H. up by her arm. {¶ 6} LCCS considered alternatives to permanent custody, but a cousin withdrew herself from consideration and LCCS ultimately determined perma nent custody to be in R.H.’s best interest. Prior to having R.H., appellant lost cus tody of another child. LCCS placed R.H. with foster parents who adopted R.H.’s biological s ibling, and the foster parents have expressed a desire to adopt R.H. as well. In Marc h 2020, LCCS filed a motion seeking permanent custody. 1 {¶ 7} The juvenile court held trial on the motion for termination of parental rights and permanent custody of LCCS on July 30, 2020. Appellant appe ared with counsel. Counsel for LCCS appeared, along with LCCS caseworker Kim Casdo rph. The guardian ad litem for R.H., Holly Miller, was also present via Zoom. Th e attorney for R.H.’s father appeared and was granted leave to withdraw, informing th e trial court that she had no contact with the father despite attempts to communicate noti ce of the hearing date. {¶ 8} Casdorph testified regarding LCCS’s efforts to reunite appellan t with R.H. Casdorph indicated she received “minimal updates” regarding app ellant’s progress with her mental health treatment and her drug screens. She also ind icated that appellant refused to sign many of the releases necessary to access inform ation on her progress, and

1 LCCS considered filing the motion earlier, but R.H.’s father h ad appeared in the case and requested time to explore placing R.H. with relatives. Ult imately, no relative came forward and no third party filed a motion seeking placement, pr ior to trial.4. also failed to provide the information herself. Appellant told Casdorph that she did not “trust the system,” and feared the information would be used ag ainst her. Casdorph did acknowledge that appellant completed the Family Navigator progr am, a parenting service, through the juvenile court, but did not attend the int eractive parenting class requested by LCCS. {¶ 9} Casdorph also noted appellant’s instability in housing. In Apr il 2018, appellant was evicted, and told Casdorph she was living with he r mother when R.H. was born. After that, appellant informed Casdorph she was staying “place to place with different people.” She lived with R.H.’s father until she was charged with domestic violence after she “allegedly broke the windows out from the ap artment.” At one point, she told Casdorph she was living at the YWCA, but when Casdorph attempted to see her there, she found out appellant did not reside there. By the ti me of trial, Casdorph did not know where appellant was living, and she was restricted by LCCS from visiting appellant’s home after appellant told others at LCCS that she w as going to harm Casdorph. {¶ 10} As to visitation, Casdorph noted that appellant was at “Level 1 ” based on her refusal to turn R.H. over to LCCS and attempts to hide at t he beginning of the case. Appellant had scheduled visits once a week, but of the 54 visit s scheduled appellant had attended only 31, with excuses offered based on the weather or forgetfulness. Casdorph also noted that, during her visits with R.H., appellant would s ometimes focus on other people rather than R.H. She also exhibited anger and defiance during visitation, such as5. on the occasion after she was seen carrying R.H. across the roo m by her arm. When cautioned not to carry R.H. that way, appellant responded by sa ying R.H. was her child and she could do as she chose. At one point, R.H.’s foster par ents returned clothing that appellant had purchased in a too-small size, and appellant forc ed R.H. into the clothing to “prove a point.” For R.H.’s birthday, appellant scheduled a sp ecial visitation, but never showed up, saying she forgot. {¶ 11} As to R.H.’s placement, Casdorph indicated that R.H. was with t he same foster family that had adopted her biological sibling, and was bonded to her foster family and sibling and doing well. Casdorph observed R.H. in her fost er home, and indicated R.H. plays with the children and pets in the household, looks t o her foster parents for comfort and direction, “squeals with delight” and hugs her fost er father when he comes home, and appears to be thriving in the stable environment prov ided by her foster family. As to alternative placement with relatives, Casdorph testified that LCCS considered appellant’s cousin, but halted the home study process at the co usin’s request. Other individuals put forth by appellant later in the process were no t considered, based on a lack of a biological relationship with appellant and lack of re lationship with R.H. {¶ 12} Appellant presented testimony of her relative by marriage, O.G. , in addition to her own testimony. O.G. was related through the ma rriage of her cousin to appellant’s grandparent, and had known appellant since birth. Although O.G. had not filed a third-party motion for custody, she expressed a desire to have custody of R.H. at trial, and began the process for a background check months prio r to trial, with the next6. steps not yet completed by LCCS. O.G. acknowledged appellant’s “melt-downs” and testified she counseled appellant to “reroute her and do someth ing positive with herself” and not give up. O.G. encouraged appellant to go to a shelter for women that could provide services, but appellant did not follow that advice. O. G. also tried to help appellant with her mental health and potential substance abuse issues, but noted that treatment “can only help you if you want to help yourself.” O. G. acknowledged that appellant refused to provide information to LCCS regarding her progress with services. {¶ 13} Appellant testified regarding her reasons for withholding relea ses and missing visitation. As to her treatment and the releases, appe llant indicated she received a mental health diagnosis of depression and anxiety, and took p rescribed medication. She shared initial information with Casdorph before deciding it was enough and refused to sign any additional releases. Appellant testified that she did her part, but LCCS did not provide information or updates regarding R.H., justifying her r efusal to provide more of her own information. Appellant also attempted to explain her m issed visitation, indicating she did not wish R.H. to travel when the weather was too hot, too cold, or too rainy, or she did not show up because she felt ill. Appellant also appeared to hold LCCS responsible because she felt the agency did not provide her eno ugh help with transportation, while also noting she had transportation for wo rk during the periods she held a job. {¶ 14} Miller, the guardian ad litem for R.H., also testified. Miller had been involved in the case from the beginning, and maintained contact with appellant as much7. as possible. She was present for visits by appellant with R.H. , and observed appellant’s anger and her conduct with R.H. She also continued to request updated releases from appellant, with the last release requested in the months before trial. Miller testified that appellant refused, saying Miller “had all the information that [she] needed.” Based on the lack of information, Miller had no knowledge of appellant’s com pletion of case plan services, and expressed concern with appellant’s “follow throug h with her services, her inconsistent visits, anger management and parenting.” As to R. H.’s best interests, Miller testified that R.H. “is very bonded with her sibling and doing well in the [foster] home.” {¶ 15} After considering the testimony and evidence, including the pri or termination case relative to R.H.’s sibling, the juvenile court terminated appellant’s parental rights and found permanent placement with LCCS was in the best interests of R.H. Appellant filed a timely appeal of this judgment. III. Assignments of Error {¶ 16} Appellant raises a single assignment of error in challenging th e judgment: LCCS did not prove by clear and convincing evidence that termination of mother’s parental rights were in the child’s bes t interest when legal custody could have been considered to a maternal rel ative who had expressed interest in custody and testified at trial. 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 in8. R.H.’s best interest, considering an available maternal relativ e to assume custody. We note, however, that there was no third-party motion filed with the juvenile court, seeking custody of R.H. as an alternative to foster care. {¶ 18} We review a juvenile court’s decision regarding termination of parental rights based on the manifest weight of the evidence, and will n ot reverse unless we find a lack of competent and credible evidence demonstrating the essen tial statutory elements for termination of parental rights. In re Alyssa C. , 153 Ohio App.3d 10, 2003-Ohio-2673, 790 N.E.2d 803, ¶ 13 (6th Dist.), citing In re Forrest S. , 102 Ohio App.3d 338, 345, 657 N.E.2d 307 (6th Dist.1995); Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 19} A motion for permanent custody is governed by R.C. 2151.414, wh ich “sets forth the procedures a juvenile court must follow and the findings it must make before granting a motion filed pursuant to R.C. 2151.413.” In re C.F. , 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22, quoting In re C.W. , 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 9. A juvenile court must fi nd, by clear and convincing evidence, that terminating parental rights and award ing permanent custody to a children services agency satisfies both portions of the perma nent 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 defined as “that measur e 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 reasonable doubt’ in crimina l cases, and which will9. produce in the mind of the trier of facts a firm belief or conv iction 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 at paragraph three of the syllabus. {¶ 20} The two-part test of R.C. 2151.414 requires the juvenile court to find (1) that child cannot be placed with either parent within a rea sonable time, or the child is abandoned, orphaned, or has been in temporary custody of the ag ency for at least 12 months of a consecutive 22-month period as provided by R.C. 215 1.414(B), and (2) that the grant of permanent custody to the agency is in the best int erest of the child, applying the factors under R.C. 2151.414(D). In re Schaefer , 111 Ohio St.3d 498, 2006-Ohio5513, 857 N.E.2d 532, ¶ 33-36, 56. {¶ 21} Here, the juvenile court first determined that R.C. 2151.414(B) (1)(a) was satisfied, finding R.H. could not and should not be placed with either parent within a reasonable time based on consideration of R.C. 2151.414(E)(1), (2), (4), and (11). These provisions are as follows: (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 parental10. 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;

* * * (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;

* * * (11) The parent has had parental rights involuntarily terminate d with respect to a sibling of the child pursuant to this section or s ection 2151.353 or 2151.415 of the Revised Code, or under an existing or former law of this state, any other state, or the United States that is substantia lly equivalent to11. those sections, and the parent has failed to provide clear and convincing evidence to prove that, notwithstanding the prior termination, the parent can provide a legally secure permanent placement and adequate care for the health, welfare, and safety of the child. {¶ 22} The trial court specifically found that appellant failed to com plete her case plan, failed to maintain stable housing, and failed to take adv antage of her visitation time, with her behavior when she did have visitation “often inappropr iate.” Appellant acknowledged her failure to complete case plan services, and re fused to provide LCCS with information regarding her housing. While she disputed iss ues related to visitation, she acknowledged missing numerous visits and did not effectivel y refute LCCS’s concerns regarding her behavior during visitation. {¶ 23} The juvenile court further found that appellant has significant mental health concerns and failed to fully participate with treatment in orde r to provide an adequate home for R.H. Appellant acknowledged her diagnoses. She also admitted her refusal to provide releases to LCCS, and as a result, the record contained no information demonstrating any progress in her treatment. {¶ 24} The juvenile court determined that appellant also demonstrated a lack of commitment to R.H. by failing to support, visit, or communicate with R.H. when able to do so, noting the infrequency of appellant’s visitation and num erous excuses for this failure. Again, appellant acknowledged her infrequent visitati on, and while she had many excuses, there was little justification for appellant’s fa ilure to miss so many visits.12. The juvenile court had ample evidence to find a lack of commitm ent on the part of appellant. {¶ 25} Additionally, the juvenile court noted that appellant had paren tal rights terminated in a prior case for R.H.’s sibling, shifting the bur den to appellant to demonstrate by clear and convincing evidence, that appellant co uld provide adequate care for R.H. and a secure placement, notwithstanding the prior term ination of parental rights. Appellant did not dispute her parental rights were terminated a s to R.H.’s sibling. Furthermore, appellant refused to provide much information rega rding her housing or her participation in case services, and consequently, appellant fai led to carry her burden as to

this factor. {¶ 26} In satisfying the second part of the two-part test, the juvenil e court next weighed the factors of R.C. 2151.414(D), and found by clear and convincing evidence that an award of permanent custody to LCCS was in the best inte rest of R.H. The juvenile court expressly noted application of R.C. 2151.414(D)( 1)(a), (c), and (d), which provide: (a) The interaction and interrelationship of the child with the child’s parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect 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 children se rvices13. agencies or private child placing agencies for twelve or more m onths of a consecutive twenty-two-month period, or the child has been in t he temporary custody of one or more public children services agenc ies or private child placing agencies for twelve or more months of a c onsecutive 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 t emporary custody of an equivalent agency in another state; (d) The child’s need for a legally secure permanent placement a nd whether that type of placement can be achieved without a grant of permanent custody to the agency; {¶ 27} As to these factors, the juvenile court noted that R.H. “has th e benefit of being placed with her biological sister” and “she is extremely bonded to her sibling and to her foster family.” Also noted was the custodial history, a nd the fact that R.H. had been in the temporary custody of LCCS for 17 months, beginning February 5, 2019. The juvenile court concluded that R.H.’s need for permanent custody required an award of permanent custody to LCCS. {¶ 28} Appellant does not dispute the evidence supporting the juvenile court’s decision, but instead pursues policy argument relative to the r efusal by LCCS to consider O.G. for alternative placement. Appellant argues that LCCS rej ected O.G. as a nonrelative, limiting its consideration of family to “the direct, nuclear or more ‘blood’ definition of family,” contrary to the recognized and protected interest of a parent in the14. “care, custody and control of their children.” Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). {¶ 29} The foster family had custody of R.H. for much of her life. Al so, throughout R.H.’s placement with her foster family, LCCS contin ued to attempt to work with appellant to achieve reunification, and O.G. did not begin the process to apply for custody of R.H. until three or four months before the trial dat e. Significantly, O.G. never filed a third-party complaint, seeking custody, and the juvenil e court therefore never had

that claim before it for consideration. {¶ 30} We recently considered the rights of parents to place their chi ld with a family member who was not related by blood in In re A.K. , 6th Dist. Ottawa No. OT-20-001, 2020-Ohio-4700. In that case, father was incarcerat ed and only mother attempted to complete case plan services to reunite with the ch ild. In re A.K. at ¶ 9. A.K. was placed in the care of the Ottawa County Department of Job and Family Services shortly after her birth after drugs were found in her system. Id. at ¶ 3-4. {¶ 31} The parents initially asked the agency to place A.K. with a fam ily friend, considered to be like family, but the agency rejected this frie nd as an option, noting the friend’s own history with the agency relative to her own childr en. Id. at ¶ 5. Father’s sister also expressed an interest in caring for A.K., but both parents strongly objected to the sister having custody of the child. Id. A.K. remained with her foster family while mother completed some her case plan objectives and began visita tions with A.K. Id. at15. ¶ 6, 9. However, after several months, mother died unexpectedl y. With reunification no longer possible, the agency sought permanent custody. {¶ 32} At trial, the juvenile court considered the motion for permanen t custody, as well as third-party claims for custody filed by the family frie nd and father’s sister, late in the case. We affirmed the juvenile court’s judgment awarding c ustody to the agency as in the best interest of the child, based in part on the bond fo rmed between A.K. and her foster family while mother worked toward reunification, and the foster family’s intention to adopt A.K. Id. at ¶ 57-58. In affirming, we noted that “[a] parent’s rights * * * ‘are always subject to the ultimate welfare of the child.’” Id. at ¶ 23, quoting In re Nicholas

P. , 169 Ohio App.3d 570, 2006-Ohio-6213, 863 N.E.2d 1102, ¶ 17 (6th Dist.), citing In re Cunningham , 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979). {¶ 33} In the present case, LCCS offered appellant case plan services with the goal of reunification, but appellant either did not complete her ser vices or refused to provide information regarding her progress. Furthermore, while O.G. ex pressed an interest in taking care of R.H., she did not appear until late in the proce edings and never filed a third-party complaint seeking custody. Therefore, R.H. never b onded with O.G., and in fact, never had any contact with O.G. Whether O.G. was conside red a family member, therefore, was not the issue, as the juvenile court was require d to consider the best interests of R.H., even over the wishes of appellant as R.H.’s mother.16. {¶ 34} Upon due consideration of the record, we find the juvenile cour t’s judgment, awarding permanent custody to LCCS, was supported by clear and convincing evidence. Accordingly, appellant’s sole assignment of error is not well-taken.

III. Conclusion {¶ 35} 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.

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

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Gene A. Zmuda, P.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/.