[Cite as In re J.L.S. , 2020-Ohio-5143.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO

IN THE MATTER OF: : O P I N I O N J.L.S. AND B.N.S., : DEPENDENT CHILDREN CASE NOS. 2020-P-0053 : 2020-P-0054

:

Civil Appeals from the Portage County Court of Common Pleas, Ju venile Division, Case Nos. 2020 JCF 00201 and 2020 JCF 00202.

Jud g ment: Affirmed.

Victor V. Vigluicci , Portage County Prosecutor, and Kristin L. Maxwell , Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For A ppellee, Portage Count y Department of Job and Famil y Services )

. Cecily J. Mullins , Megargel, Eskridge & Mullins, LLP, 231 South Chestnut Street, Ravenna, OH 44266 ( For Appellant, Dale Straw )

. Neil P. Agarwal , 3732 Fishcreek Road, #288, Stow, OH 44224 ( Guardian ad Litem )

.

MATT LYNCH, J. {¶1} Appellant, Dale Straw , appeals from t he judgment of the Portage County Court of Common Pleas, Juvenile Division, granting permanent cu stody of his children, J.L.S. and B.N.S. to appellee, the Portage County Department of Job and Family Services (PCDJFS). For the following reasons, we affirm the de cision of the lower court. {¶2} Straw is the biological father of J.L.S., born September 2, 201 6, and B.N.S., born August 8, 2017. The children’s biological mother is Tiffa ny Thomas.2 {¶3} On November 7, 2017, a complaint was filed alleging the childre n were abused, neglected, and dependent due to domestic violence conce rns (Thomas striking Straw), lack of safe and stable housing, and failure to provide sufficient medical care. PCDJFS had been working with the family since September 2016, o n parenting and mental health issues. The children were placed in the interim custody of PCDJFS on November 15, 2017, and were adjudicated dependent. Temporary c ustody was granted to PCDJFS on January 12, 2018. The case plan required Straw to complete a parenting evaluation and classes, engage in mental health services, and m aintain safe housing.

Pursuant to a Ja nuary 31, 2019 Ag reed J udgment E ntry, legal cus tody of the children was returned to Thomas and Straw under an order of protective s upervision. Protective supervision was terminated on April 26, 2019. {¶4} On June 20, 2019, PCDJFS again filed a complaint alleging the c hildren were abused, neglected and dependent, noting that they were rem oved from their parents’ custody on June 19 due to a lack of housing. A June 2 5, 2019 entry was issued placing the children in the interim custody of PCDJFS. The chi ldren were adjudicated dependent on July 23, 2019, and a case plan filed on that date required, inter alia, Straw

to maintain a source of income and a safe home for the children . Following a subsequent dispositional hearing, the court issued an August 23, 2019, ent ry awarding temporary custody of the children to PCDJFS. PCDJFS filed an Amended Mot ion for Permanent Custody on May 12, 2020. It requested termination of parental rights given the parents’ failure to complete the case plan objectives and the lack of a safe and stable environment

for the children. {¶5} A hearing on the motion for permanent custody was held on May 2 2 and3 29, 2020. Prior to the commencement of testimony, Thomas surre ndered her parental rights. The following testimony was then presented. {¶6} Danielle McGarvey, a case worker with PCDJFS, testified that a voluntary case plan involving J.L.S. began in 2016 due to mental health, domestic violence, and housing concerns and the failure to follow through with J.L.S.’ s medical care. PCDJFS filed for temporary custody in November 2017 due to ongoing con cerns with these issues and failure to seek follow up medical care for B.N.S. {¶7} McGarvey testified that the case plan objectives in 2017 were f or Straw to establish housing, complete a parenting evaluation, and address mental health concerns. Straw completed the evaluation and parenting classes but failed to complete counseling. During PCDJFS’ involvement with the children, Straw, Thomas, an d the children moved several times, living with different family members. The child ren were returned to Straw and Thomas on February 1, 2019, following substantial complianc e with the case plan. {¶8} Alex Bevere, a PCDJFS caseworker, became involved when the chil dren were returned to PCDJFS’ custody in June 2019. She testified t hat, at that time, the family was homeless and the children had been living with their parents in a tent for about three days, after they had previously been living with Thomas’ uncle. Bevere testified

that there were concerns about Thomas’ and Straw’s mental healt h and a lack of follow through with treatment. Bevere prepared a July 23, 2019 case p lan which required Straw to obtain housing an d employment and en gage wit h Coleman Profes sional Services for

mental health services. When asked about the reason Straw was referred to mental health counseling, she stated: “the mental health of his point with the anxiety and the depression, of him not having the kids was reported to me by Pa m Yeager” (sic) and that4 the agency wanted him to be able to cope with “anger” and anxie ty. {¶9} Bevere testified that during the duration of the 2019 case plan leading up to the permanent custody hearing, Straw and Thomas had been stayin g at the Eastwood Motel in Kent, Ohio, with the exception of one month where they lived with Thomas’ mother until being asked to leave due to domestic violence, and some weeks where they lived “on the streets.” According to Bevere, she sometimes had difficulty locating them because they were back and forth between the motel and the stre ets. Bevere testified Straw had difficulty getting housing through the Portage Metrop olitan Housing Authority due to past evictions and a criminal record and told her on sev eral occasions that he had housing when that was not the case. Bevere testified that Stra w reported employment at McDonald’s starting in July 2019 but did not provide paystubs u ntil November or December 2019. Bevere also expressed concern with Straw’s lack of transportation, which he provided as a justifica tion for failing to attend coun seling appointments. {¶10} Bevere testified that there were two to four domestic violence incidents where police were called to the Eastwood Hotel and Thomas was t he aggressor. According to Bevere, Thomas and Straw were still a couple and r esiding together at the time of the permanent custody hearing. {¶11} Regarding visitation, Bevere indicated that Straw attended 22 o f 25 offered supervised visits since July 2019, where he was engaged with th e children, whom she opined viewed him as a “fun adult” rather than a parent. She t estified that the children are bonded with each other and their foster parents but not wit h any maternal or paternal relatives. Bevere believed unification with Straw was unlikely because he lacked stable housing throughout the case and was not consistent with mental health counseling.5 {¶12} Pam Yeager, a therapist at Coleman, met with Straw during four appointments from Summer 2019 into February 2020, working with him on issues including substance abuse, housing, and coping skills. Straw m issed ten scheduled appointments. She believed he missed appointments due to “hous ing issues” as he was homeless and had difficulty getting to the office. Although Co leman has a policy to discharge patients who had three missed appointments, she felt he deserved “another chance” and “was making progress in some of his goals.” After the four appointments with her, he “had more insight” and also had reported that he h ad found housing after their last appointment in February 2020. She stopped seeing pa tients in March due to the COVID-19 pandemic but continued with telephone appointments , although she did not believe Straw had scheduled any telephone appointments. {¶13} Straw testified that in June 2019, their lease expired, the lan dlord asked them to leave, and he had been laid off from his job. The fami ly then stayed at his brother’s home for two weeks. He contacted a homeless shelter, which said he needed

to have a hotel room. He testified that he asked PCDJFS for a payment voucher to rent a hotel room at which time they removed the children from his c ustody. He stated that the family had not been living in a tent but had gone camping a round this time period. {¶14} Straw testified that he began working at McDonald’s in July 201 9 and is employed as a manager working 40-70 hours a week. He presented paystubs which showed his employment at McDonald’s from November 2019 to May 2 020. {¶15} As to housing, Straw testified regarding multiple attempts he m ade to obtain an apartment. In July and August of 2019, he did not have the funds necessary to pay rent. In November, a place he had set up to rent was given to another renter while he6 was seeking rent assistance. In January 2020, he needed a cosi gner to rent a property but his father, who was to cosign, passed away. Straw testifie d that although he had a gross sexual imposition conviction in 1999, this did not preven t him from renting apartments. Straw testified that he had been living consistent ly at the Eastwood Motel from December 2019 through May 2020, with Thomas, although theyended their relationship in October 2019. He testified that he had applied to buy a trailer in a Trumbull County trailer park before COVID became a concern, had been app roved for the trailer on May 3, 2020, but that he was waiting to sign the paperwork, as the process had been delayed by COVID. {¶16} Regarding counseling, he testified that he believed he had miss ed only three appointments and that they had been canceled by the couns elor. He had a phone appointment scheduled for an upcoming date. {¶17} Straw testified that he had been working hard to get his childr en back and had a plan for the children’s grandmother, who lived in the tra iler park where he intended to purchase the trailer, to watch them while he is at work. He testified that the children

had communicated to him a desire to “come home.” {¶18} The guardian ad litem, Neil Agarwal, recommended permanent cust ody be granted to PCDJFS. 1 He noted that Straw did not currently have a living situation suitable for the children and would have difficulty caring for them with his present employment. He stated that Straw loves the children and they have fun durin g visitation but need more

than a “fun time father.” He believes the children see the fos ter parents as their parents.

1. While Straw notes in the fact section of his appellate brie f that the trial court declined to swear-in Agarwal or “have him * * * be subject to cross-examination,” no error i s alleged regarding this issue. Furthermore, the court asked counsel for both sides if they wished to questi on Agarwal after he gave his recommendation, which Straw’s counsel declined to do.7 {¶19} On June 1, 2020, the trial court issued a Journal Entry grantin g permanent custody of the children to PCDJFS. The court found that the ch ildren had been in the custody of children’s services for approximately 18 of the prio r 22 months. It determined that reunification with Straw is unlikely due to his inability to complete the case plan, including addressing his “anger issues,” obtaining counseling, and finding safe and stable housing. It found it was in the children’s best interest that Straw’s parental rights be permanently terminated. {¶20} Straw timely appeals and raises the following assignment of err or: {¶21} “The trial court’s award of permanent custody to the Portage Co unty Department of Jobs and Family Services was against the manifest weight and sufficiency

of the evidence.” {¶22} “It is well established that a parent’s right to raise a child is an essential and basic civil right.” In re T.B. , 11th Dist. Lake No. 2008-L-055, 2008-Ohio-4415, ¶ 29, quoting In re Phillips , 11th Dist. Ashtabula No. 2005-A-0020, 2005-Ohio-3774, ¶ 22; In re Hayes , 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997). Termination of parental rights has been described as “the family law equivalent of the death penalty.” (Citations omitted.) State v. Hoffman , 97 Ohio St.3d 92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. However, “[t]he rights of a parent to his or her child, while f undamental, ‘are always subject to the ultimate welfare of the child, which is the pole star or controlling principle to be observed.’” (Citation omitted.) In re L.M.R. , 11th Dist. Lake No. 2016-L-096, 2017- Ohio-158, ¶ 33, citing In re Cunningham , 59 Ohio St.2d 100, 105, 391 N.E.2d 1034 (1979). “Although the termination of the rights of a natural p arent should occur as a last resort, termination is expressly authorized when necessary for the welfare of the child.”8 Id. {¶23} “R.C. 2151.414(B) establishes a two-pronged analysis that the j uvenile court must apply when ruling on a motion for permanent custody. ” In re Krems , 11th Dist. Geauga No. 2003-G-2535, 2004-Ohio-2449, ¶ 33. The court must f ind 1.) that one of the circumstances set forth in R.C. 2151.414(B)(1)(a) through (e) i s present and 2.) that it is in the best interest of the child to grant permanent custody to PCDJFS. R.C. 2151.414(B)(1). {¶24} In this case, the court found that, pursuant to R.C. 2151.414(B )(1)(d), the children had been in the custody of PCDJFS for 18 months of a c onsecutive 22 month period, when considering the two separate periods of temporary custody, thereby satisfying the first prong. Stra w does not refute that this fa ctor was properly demonstrated by PCDJFS; he contends that the determination that it was in th e best interest of the children for permanent custody to be granted to PCDJFS was not supported by the weight and sufficiency of the evidence. {¶25} A determination that it is in the best interest of the children to grant permanent custody to the children’s services agency must be sup ported “by clear and convincing evidence.” R.C. 2151.414(B)(1); Matter of C.N.L. , 11th Dist. Lake No. 2020- L-036, 2020-Ohio-3771, ¶ 12; In re Adoption of Holcomb , 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985); In re J.S.E. , 11th Dist. Portage Nos. 2009-P-0091 and 2009-P-0094, 2010-Ohio-2412, ¶ 25 (“we will not reverse a juvenile court’s t ermination of parental rights and award of permanent custody to an agency if the judgm ent is supported by clear and convincing evidence”) (citations omitted). In applying a c lear and convincing evidence standard, the evidence must “‘produce in the mind of t he trier of facts a firm9 belief or conviction as to the facts sought to be established. * * * Once the clear and convincing standard has been met to the satisfaction of the [tr ial] court, the reviewing

court must examine the record and determine if the trier of fac t had sufficient evidence before it to satisfy this burden of proof.’” C.N.L. at ¶ 12, citing Holcomb at 368. {¶26} Regarding Straw’s contention that the court’s judgment is not s upported by the weight of the evidence, “‘[a] reviewing court generally wil l not disturb a trial court’s permanent custody decision unless the decision is against the m anifest weight of the

evidence.’” Matter of N.M.P. , 2018-Ohio-5072, 126 N.E.3d 200, ¶ 54 (11th Dist.), citing

In re D.M. , 4th Dist. Hocking No. 15CA22, 2016-Ohio-1450, ¶ 10 (citations omitted). To apply this standard, the appellate court “weighs the evidence a nd all reasonable inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the [finder of fact] clearly lost it s way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.” (Citations omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20; State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); N.M.P. at ¶ 54. “‘Issues relating to the credibility of witnesses an d the weight to be given the evidence are primarily for the trier of fact.’” In re D.H. , 11th Dist. Ashtabula No. 2017-A-0081, 2018-Ohio-630, ¶ 18, quoting In re West , 4th Dist. Athens No. 05CA4, 2005-Ohio-2977, ¶ 37. {¶27} In evaluating the entirety of the evidence presented in conjunc tion with the best interest factors, we find that the court’s decision to ter minate Straw’s parental rights was supported by the weight of the evidence and clear and convi ncing evidence. {¶28} In determining the best interest of the children, a court shall consider “all10 relevant factors, including, but not limited to: the interactio n and relationship of the child with his parents, siblings, relatives, and foster caregivers; t he wishes of the child with regard for his maturity; the custodial history of the child; th e child’s “need for a legally secure permanent placement and whether that type of placement c an be achieved without a grant of permanent custody to the agency”; and other factors that do not appear to be relevant in the present matter, such as a conviction for certain criminal offenses, withholding food or medical treatment, drug abuse, abandonment, and prior termination of parental rights. R.C. 21 51.414(D)(1)(a)-(e) and (E)(7)-(11)

. {¶29} Here, testimony was presented that, due to the age of the child ren, who were only two- and three-years-old at the time of the trial, th ey could not express their wishes. Thus, this factor does not weigh into our consideratio n. {¶30} As to the custodial history, the children had been in the custo dy of PCDJFS for approximately 18 of the 22 months preceding the filing of t he motion for permanent custody, a factor that is of significant importance in this cas e, since the children had spent a large portion of their lives in the custody of PCDJFS. This factor is also interrelated with that of the children’s relationships. It was indicated by mult iple parties that the children found Straw to be a “fun adult” rather than a parent. While it is true that Straw believed he was bonded with the children and that the children did enjoy their time with him, PCDJFS caseworker Bevere did not believe they had a father-chil d bond, nor was there a bond with any maternal or paternal relatives. Significantly, the children are bonded with each other and with the foster parents they have lived together with for 11 months. That bond was not questioned by any of the witnesses. {¶31} Regarding the ability to achieve a permanent placement with Str aw, the11 circumstances of the present case also indicate this weighs in favor of granting permanent custody to PCDJFS. PCDJFS has been working with Straw and the children in some capacity for almost the entirety of both children’s lives. Whe n the children were returned to Straw’s custody in 2019, they remained there for approximate ly five months and less than two months after protective supervision had been terminate d. Of particular concern is Straw’s repeated inability to obt ain stable and secure housi ng for the children. Throughout the past several years, he and Thomas moved from rel ative to relative. When the children were removed from their custody due to housing con cerns, Straw repeatedly made claims to caseworkers that he was about to obtain housing but failed to ever produce concrete evidence of doing so. Instead, during the yea r preceding the termination hearing, he was living in a motel, an environment n ot suitable for the children. While Straw testified at the hearing that he was making arrange ments to purchase and move into a mobile home, and that he would be able to sign the lease and move in on the Tuesday or Wednesday following the hearing (held on Friday, May 22), he did not present documentation to prove this statement. While a second hearing was held on May 29 to address a paystub issue, Straw made no attempts to prove that h e had completed the agreement to purchase the trailer or had moved in, either throu gh testimony or documentation. If he had obtained housing, consistent with the testimony he had previously given, he could have sought to introduce evidence or testimony to that fact,

but he failed to do so. {¶32} There were also legitimate concerns that, although PCDJFS requi red Straw to complete counseling for various issues, testimony demonstrat ed he failed to attend ten scheduled appointments, evidencing a lack of commitment to comp leting the case plan.12 Further, while Straw may not have been the aggressor in the dom estic violence incidents with Thomas, testimony indicated that he continued to live with her and that the two frequently argued, another concern that could negatively impact the children. {¶33} Straw emphasizes that he should be given additional time to ach ieve compliance with the case plan and obtain and prepare stable hou sing for the children. While it is unfortunate that termination of parental rights is necessary as we do not question Straw’s desire to have custody of the children, this c ourt has repeatedly emphasized the need to provide permanence for children and the inability of the court to allow an indefinite period for case plan completion. Speculati ve future plans do not justify failure to terminate parental rights when it is in the children ’s best interest. See In re

A.J.P.-H. , 11th Dist. Lake Nos. 2017-L-019 et al., 2017-Ohio-5515, ¶ 68 (“ [a]lthough [mother] believes she can provide a stable environment for the children, this is speculative and, again, has not been accomplished over the more than two-ye ar period that they were not in her custody”); In re B.R.C. , 11th Dist. Portage Nos. 2013-P-0059 and 2013-P-0060, 2014-Ohio-69, ¶ 49, citing In re N.A.P. , 5th Dist. Washington Nos. 12CA30 and 12CA31, 2013-Ohio-689, ¶ 40 (“[T]he lower court’s holding that it was i n the children’s best interest to be placed with children’s services must be affirmed when, at the time of the permanent custody hearing, the appellant maintained that, upon his releas e from a correctional facility, he would obtain secure housing, since this assertion was unproven and speculative. In light of past factors, and the children's need for stability, they should not have their lives subjected to uncertainty, especially when cons idering the appellant’s past inability to provide a home.”); In re L.M. 11th Dist. Ashtabula No. 2010-A-0058, 2011- Ohio-1585, ¶ 50.13 {¶34} While Straw argues that the courts should take into account his “continuous” progress, including maintaining a full time job and making prog ress in counseling sessions, as noted above, there are still significant portions of the case plan that are incomplete, including counseling and, most importantly, proof o f and access to stable housing. Regardless, completion of case plan goals alone does not determine whether to grant a motion for permanent custody as the best interests a re paramount. In re A.J.P.-

H. at ¶ 67. {¶35} Finally, Straw argues that he was a “victim” of the COVID pande mic, noting it impacted his counseling appointments and ability to obtain h ousing. Straw, however, failed to comply with requirements to obtain housing and comple te counseling well before COVID became a concern. Over the course of multiple years prio r to 2020, he struggled to maintain safe housing. He had many months before COVID unde r the most recent case plan to obtain housing. As noted above, although he state d there was a delay in obtaining the mobile home due to COVID, he testified the proces s was essentially complete yet did not provide paperwork or other evidence to bac k up this claim. As to counseling, it is evident telephone appointments were available but Straw failed to take advantage of these. The children should not remain in limbo be cause of Straw’s failure to take initiative to provide them a safe home and COVID cannot excuse his inaction. {¶36} When reviewing each of the factors considered by the lower cour t and the evidence as a whole, the court’s decision was supported by clea r and convincing evidence and its determination was not against the weight of th e evidence. Given the serious concerns regarding housing, regardless of Straw’s conte ntion that he has made progress, we emphasize that “it was the General Assembly’s purp ose in establishing the14 present procedures for the termination of parental rights ‘to p revent children from lingering in foster care,’” especially here where the children can be ado pted by the foster family with which they are bonded. (Citation omitted.) In re J.G. , 11th Dist. Lake No. 2015-L102, 2016-Ohio-896, ¶ 77. {¶37} The sole assignment of error is without merit. {¶38} For the foregoing reasons, the judgment of the Portage County C ourt of Common Pleas, Juvenile Division, granting permanent custody of J.L.S. and B.N.S. to PCDJFS, is affirmed. Costs to be taxed against appellant.

TIMOTHY P. CANNON, P.J., THOMAS R. WRIGHT, J.,

concur.