[Cite as In re R.M. , 2013-Ohio-3588.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

IN THE MATTER OF: : R.M., M.M, D.M., B.M., : Case No. 12CA43 12CA44 : ADJUDICATED NEGLECTED AND DEPENDENT CHILDREN. : DECISION AND JUDGMENT ENTRY

_________________________________________________________________ APPEARANCES: COUNSEL FOR APPELLANT: James A. Wallace, 11 East Washington Street, P.O. Box 337, Athens, Ohio 45701

COUNSEL FOR APPELLEE: Keller J. Blac kburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, One S. Court St., Athens, Ohio 45701 CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION DATE JOURNALIZED: 8-14-13 ABELE, J. {¶ 1} This is an appeal from Athens County Common Pleas Court, Juvenile Division, judgments that awarded Athens County Children Services (ACCS) permanent custody of R.M. (born May 2, 2006), M.M. (born July 27, 2007), D. M. (born October 27, 2008), and B.M. (born June 14, 2011). {¶ 2} C.M., the children’s natural mother and appellant herein, a ssigns the following

errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT’S DETERMINATION THAT GRANTING PERMANENT CUSTODY TO ATHENS COUNTY CHILDREN SERVICES WAS IN THE CHILDREN’S BEST INTERESTSWAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.” SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT LACKED SUBJECT MATTER JURISDICTION TO GRANT PERMANENT CUSTODY OF B.M. TO ATHENS COUNTY CHILDREN SERVICES.” {¶ 3} On November 3, 2010, ACCS f iled complaints that a lleged appellant’s three children, R.M., M.M., and D.M., all with different biological fathers, were abused, neglected and dependent and requested temporary custody. 1 Appellee also requested emergency custody of the

children. {¶ 4} The complaint alleged that an ACCS caseworker responded to appellant’s home after receiving reports that appellant’s child ren, then ages 4, 3, and 1, were outside and unsupervised. When the caseworker arrived at appellant’s home, she observed that the home was filthy and that the one-year old child looke d dirty. A few days later, the caseworker returned to the home and observed that D.M., the one-year old child, had a dirty face, that R.M.’s

face and hands were covered in old Spaghetti O’s, and that M.M. was naked and appeared to have old feces stains on her buttock and inner thighs. The caseworker returned to the home the next day and observed diapers with feces located in the first floor ba throom, and additional feces-filled diapers in the upstair s bathroom. In the upstairs bathroom, the caseworker also

observed feces on the floor.

1 Appellant’s fourth child, B.M., had not yet been born when appellee filed the November 3, 2010 complaint. {¶ 5} In September 2010, ACCS received reports that appellant’s children were constantly outside unsupervised, a nd that construction workers in th e area had to be careful when operating equipment in order not to harm the children.ATHENS, 12CA43 AND 12CA44 3 {¶ 6} On November 2, 2010, ACCS received yet anot her report that appellant’s children were outside unsupervised for appr oximately 45 minutes in thirty- to forty-degree weather. The report indicated that the children were wearing diapers and not properly dressed for the weather (R.M. wore a pajama top and a dirty diaper; M.M. wore a shirt, thin pa nts, and did not have shoes; and D.M. wore only a di rty diaper). When the ACCS caseworker arrived, she discovered that appellant had been asleep in her bedroom. Appellant subse quently was arrested for child endangerment. {¶ 7} On December 15, 2010, the trial court adjudi cated the children neglected children. On January 18, 2011, the court awarded ACCS temporary custody of the three children. {¶ 8} On June 14, 2011, appellant gave birth to he r fourth child, B.M., fathered by yet another man. On June 16, 2011, th e trial court awarde d ACCS temporary emergency custody of the newborn child. On June 20, 2011, ACCS file d a complaint that alleged B.M. to be a neglected and dependent child. The court subsequently adjudicat ed B.M. a dependent child and awarded ACCS temporary custody of B.M. {¶ 9} On June 13, 2012, appellee filed a motion to modify all four of the children’s dispositions to permanent custody. On Se ptember 18, 2012, and continuing on October 12, 2012, the court held a permanent custody hearing. During the hearing, appellant asserted that the trial court lacked jurisdiction over B.M.’s case. She claimed that because she gave birth to B.M. in Kentucky, he was not an Ohio resident and an Ohio c ourt did not have jurisdiction to issue a custody decision regarding B.M. The c ourt delayed ruling on the jurisdictional argument to provide ACCS the opportunity to respond. {¶ 10} Former ACCS caseworker Katie Murphy tes tified that she worked with appellantATHENS, 12CA43 AND 12CA44 4 from August 2010 to November 2011. Murphy stat ed that appellant initially worked with ACCS on a voluntary basis and agreed to a safety plan. The safety plan required appellant to properly supervise the children, change the diaper s when needed, and maintain a clean home. Murphy testified that ACCS referred appellant for mental health counseling, provided parent-mentor services, conducte d home visits, provided transpor tation, and took appellant and the children to the doctor. Murphy stated that after the safety plan had been in effect for less than one week, ACCS removed the children pursu ant to an emergency custody order because appellant failed to properly supervise the children. 2 {¶ 11} Murphy testified that after ACCS received custody of the children, appellant lost her subsidized housing and moved in with her fa ther and grandmother. Murphy stated that appellant continued to reside there until Octobe r or November 2011. When Murphy visited the home, she did not notice any bedr ooms available for the children. Murphy stated that appellant eventually obtained HUD-approved housing that appeared to be adequate for the children. {¶ 12} Murphy explained that ACCS developed a case plan for appellant that required her (1) to attend visits with the children, (2) to attend mental health c ounseling, (3) to obtain housing, and (4) to obtain her GED. Murphy tes tified that she attended a ppellant’s first mental health counseling session. She la ter learned that appellant was prohibited from returning to the counseling center for six months. ACCS then arranged counseling serv ices through another provider.

2 Murphy explained that ACCS received a report that the children had been ou tside and unsupervised. Appellant’s counsel, however, objected on the basis of hear say. The trial court sustained the objection. {¶ 13} Murphy stated that appellant did not obtain her GED during the time that MurphyATHENS, 12CA43 AND 12CA44 5 worked with appellant, despite Murphy’s recommendation that appe llant need not complete work requirements but, instead, simply work on obtaining her GED. Murphy te stified that appellant did not have work and that gove rnment benefits and food stamps were her sole source of income. {¶ 14} Murphy also explained that appellant ha d problems with transportation, so ACCS arranged cab services to transpor t appellant to visitations with th e children. Murphy stated that twice in 2011 when the cab arrived to pick up appellant, appella nt was unavailable. Murphy explained that she requested appellant to sign an agreement that she would receive cab services under a probationary period and that if she misse d one more transport, ACCS would revoke the services. Murphy testified th at appellant neverthe less missed another cab pick-up and on March 11, 2011, ACCS terminated appellant’s cab privileges. Murphy stated that ACCS reinstated appellant’s cab privileges on June 21, 2011, but revoked them again on June 30, 2011. Murphy explained that she and other A CCS caseworkers provided transpor tation to appellant as their availability allowed. {¶ 15} Integrated Services licensed social worker Amy Smith testified that she began working with appellant in May 2010. Smith stat ed that appellant in itially was referred to Integrated Services for assist ance finding housing. Smith helped appellant find subsidized housing after appellant lost her prior subsidized housing due to the children’s removal. Smith stated, however, that the new subsidized housin g depended upon appellant ha ving custody of the

children. {¶ 16} Smith also worked with appellant to increase her “self-sufficiency, skill-building * * * her motivation, [and] her self-e steem.” Smith stated that appe llant appeared engaged in the services and that appellant ha d looked for employment and ev en appeared “excited” aboutATHENS, 12CA43 AND 12CA44 6 finding a job. {¶ 17} Appellant testified that she initially contacted ACCS for assistance finding housing for her and the children. She further reque sted help to transport the children to doctor appointments. Appellant stated that ACCS caseworker Murphy helped her clean the house because appellant was unable to clean the house and supervise the three children at the same time. Appellant stated that she tried to ensu re that the children would not leave the house unsupervised, but testified that th e oldest child was able to open the doors. She stated, however,

that the children were never left outside unsupervised for very l ong. Appellant explained that on the date ACCS initially removed the children, she had been upstairs cleaning and R.M., the oldest child (who was approximately four years old at the time) asked if he could go outside to

retrieve his truck. Appellant told him that he could retrieve the truck as long as he came back

into the house. She stated that she did not leave him unsupervised because she could see him from the upstairs window. She saw the other two children outside with R.M. and “kn[e]w that they was [sic] just going to grab that truck and bring it back in.” Appellant testified that five to ten minutes later, one of her neighbors came over and told her that ACCS “had been called because my kids were outside.” {¶ 18} Appellant stated that she went to Tri- County Mental Health pursuant to ACCS’s request. She also admitted that she missed thr ee visits and that TCMH then placed her on probation for six months. {¶ 19} Appellant stated that when ACCS initially removed the children, she lost her subsidized housing and moved in with her mother and grandmother. In October 2011, appellant obtained new subsidized housing where she re mained for approximate ly nine months.ATHENS, 12CA43 AND 12CA44 7 Appellant explained that she eventually lost th at subsidized housing because she did not have custody of the children and because ACCS did not permit home visits with the children. At that point, appellant moved in with her fiancé’s family. {¶ 20} Appellant stated that she did not unde rstand why ACCS would not permit home visits because she believed that she did “everythi ng” that the case plan required her to do. She admitted, however, that she did not consistently attend visits with the children and that she requested ACCS to drop the one visit per week sh e had scheduled with the newborn child, B.M. Appellant testified that ACCS claimed she failed to change the children’s diapers as needed. Appellant stated, however, that she believed she complied with the diaper checklist that ACCS caseworkers provided. She testified that she chan ged the diaper at least once over the course of the two-hour visit and that the child “only needed changed once or twice.” Appellant explained that ACCS requested that she change the diaper at least twice per visit. Appellant stated that she then began changing the diaper twice. {¶ 21} Appellant testified that she brought diapers to the visits as ACCS requested, but admitted that she did forget on some occasions. She stated that when B.M. was a newborn, she brought formula for him. Appellant explained that ACCS informed her that she brought the wrong formula and threw it away. She stated that ACCS then gave her a container of the proper formula so that she would know which type to br ing on the next visit. Appellant claimed that she would bring this same formula to the next visit, but ACCS would tell her it was the wrong one. At that point, appellant “gav e up.” Appellant stated that A CCS kept changing the type of formula due to “digestible issues.” {¶ 22} Appellant further explained that once B.M. was a little older, she brought babyATHENS, 12CA43 AND 12CA44 8 food instead of formula because she only had $100 on her food stamp card and his formula cost about $20. She explained that sh e also needed to use the $100 to purchase food for the other

three children. {¶ 23} Appellant stated that in the summer 2011, she passed a GED pre-test and that she only needs to pay $4 to take the test to complete her GED. Appellant te stified that she has not yet taken the test because she does not think she is ready. {¶ 24} Appellant explained that she attempte d to enroll at Hocking College, but discovered that she would need her GED to gra duate. She stated that she went to Hocking College for three months, then dropped out. {¶ 25} Appellant testified that she presently lives with her fiancé, her fiancé’s mother, her fiancé’s step-father, and her fiancé’s grandfather. She stated that the children could live with her and her fiancé’s family. Appellant explained that the ACCS caseworker visited the home

once. {¶ 26} Appellant testified that she and her fiancé are in the process of fixing up a trailer and will be moving into it next month. Appellant believes that with her fiancé in her life, she will be able to supervise and care for the children properly. {¶ 27} Tri-County Mental Health c ounselor Micki Lamb stated that she began counseling R.M. in January 2011. She explained that she ha s helped R.M. cope with the adjustment to foster care, manage anxiety, and build social skills. Lamb also testified that R.M. had “a lot of aggression toward his siblings.” She stated that R.M. has improved since he began counseling. Lamb diagnosed R.M. with “at least partially largely resolved post traumatic stress and * * * attention deficit hyperactivity diso rder.” She explained that she al so is trying to “rule out * * *ATHENS, 12CA43 AND 12CA44 9 any other particular mood disorder .” Lamb stated that R.M. still has anxiety about the state of uncertainty regarding his home life. {¶ 28} Lamb explained the type of home life R.M. needs: “He would need structure. He would need consistency. He would need a warm consistent environment. He’d need to

know that if he was distressed somebody could help him. He ’d need somebody that could

coordinate with the schools to ma ke sure that behavior plans a nd things like that were being followed through on.” {¶ 29} John Patterson, one of the children’s foster parents, stated that the children have lived continuously in his home since their removals . He explained that when the children first entered the home, R.M. had behavioral issues a nd R.M. and M.M. had problems with their teeth. Patterson testified that R.M. had two healthy t eeth in his mouth, four had to be pulled, some were filled, and others were capped. He stated that M.M. had four teeth pulled and four fillings. Patterson further explained that the children ha d skin conditions. R.M. and M.M. both had a fungus infection on their bottoms, and D.M. had a bo il. He stated that the children also had not

received all of their immunizations. {¶ 30} Jennifer Pinney stated that she was a ppellant’s parent-mentor from September 2010 to March 2012. She explained that the concer ns were as follows: (1) appellant did not properly supervise the children; (2) appellant did not provide pr oper basic care for the children; (3) appellant did not change diap ers when needed; and (4) appella nt did not have sufficient food in the home. Pinney testified that appellant did not remedy any of the concerns. She stated that ACCS purchased diapers and talk ed to appellant about nutrition, but “nothing was being done.” Pinney testified that appe llant did not want to work on any go als–appellant told Pinney, “I don’tATHENS, 12CA43 AND 12CA44 10 do goals.” Pinney stated that she tried to establish duties for appellant to follow each visit, but appellant stated “that she was not establishing even a duty.” {¶ 31} Pinney explained that during the superv ised visitations, she never observed appellant make any progre ss in being able to change the children’s diapers when needed. She stated that ACCS repeatedly discussed with appellant the need to change the children’s diapers in a prompt manner, but appellant di d not comply. Pinney testified that before the children were removed, “there was feces coming out of the side of the diaper and we were having the same issues during visitation even when a visitation worker would tell her that the child’s diaper needed changed it wouldn’t be changed.” {¶ 32} Pinney further explained that she did not see appellant provide the children with nutritious food, but instead, noticed that a ppellant gave the child ren candy and other “inappropriate foods.” Pinney stated that ACCS encouraged appellant not to give the children candy, yet she continued to do so. {¶ 33} Pinney additionally testified that appe llant did not consis tently attend her

scheduled visits with the children. She stat ed that between October 26, 2010 and September 27, 2012, appellant had 188 sc heduled visits and appellant, but did not appear for thirty-three visits and canceled nineteen. Pinney ex plained that the missed and cancel ed visits did not include the

time when ACCS removed her from the “vis itation board” between March 2, 2012 and May 14, 2012. Pinney stated that between February a nd May 2012, appellant had only three visits. {¶ 34} Pinney testified that on Ma rch 9, 2012, she terminated th e parent-mentor services because appellant missed mu ltiple visits and displayed a signifi cant lack of progress. She stated that appellant “refused to implement sugge stions and direction given to her by theATHENS, 12CA43 AND 12CA44 11 parent/mentor.” Pinney explaine d that ACCS informed appellant that she should not “prop the bottle” when feeding B.M., that she should change the diaper without prompting, and that she should brush the children’s teeth during visitation. Pinney stated, however, that appellant made no progress toward these goals. Pinney explaine d that she (1) requested appellant to bring diapers for B.M., but she did not; and (2) requested appellant to bring formula for B.M., but she would bring the wrong formula, ex pired formula, or she did not br ing it at all. Pinney testified that despite all of the promptin g and encouragement that ACCS provided to appe llant, appellant has yet to demonstrate that she can consistently provide for the children’s basic needs, even during supervised visitations. Pinney also stated that appellant had some positive interactions with the children: (1) appellant read to them; (2 ) they showed affection for one another; and (3) appellant provided appropriate meals for the children. She further explained, however, that appellant was unable to engage in these positive interactions on a consistent basis. {¶ 35} Pinney testified that she di d not believe that B.M. ha d bonded to appellant. She stated that B.M. “[o]ften times * * * sits during visitation away from [appellant] facing away from [appellant] in a stroller, not paying attention.” Pinney fu rther explained that appellant

continues to have “some serious supervision” issues. She stated that appellant and ACCS staff

members took the children to COSI in Columbus and “[i]t took two other staff members making sure that we had an eye on each one of the ch ildren because [appellant] wasn’t doing, cause she

would take off with one of the children and not pay attention to where the other ones were.” Pinney further explained: “[Appellant ] did not supervise all of her ch ildren or even try to do so[. S]he also would walk off especially with [R.M .] and just try to leave the other children and w[a]nder. The other children to w[a]nder and push [B.M.] in the stroller. [sic]”ATHENS, 12CA43 AND 12CA44 12 {¶ 36} ACCS worker Mandi Knowlton testified that she did not believe that appellant properly supervised the children on a consiste nt basis. She explained that during one observation, she had noticed the children playin g on the playground and R.M. was pushing B.M. in the stroller “kind of recklessly.” Knowlton stated that she believe s appellant loves her children. She explained that the children “are us ually very happy to see [appellant],” and that they recognize her as their mother. Knowlton testified that during some visits, appellant read stories to the children, listened to music, and played appropriately. {¶ 37} ACCS caseworker Kathi Vanmeter stated that she started working with appellant in December 2011. She testified that the case plan required appellant to attend visits with the

children and to ensure that the children’s needs were met during visits. The case plan further required appellant to (1) follow the guidelines, (2) supervise the children, (3) attend counseling for her mental health needs, (4 ) change diapers when needed, (5) find appropriate housing, (6) maintain a clean home, and (7) work on obtaining her GED. {¶ 38} Vanmeter testified that appellant had HUD housing in Nelsonville, but that she no longer has it. Vanmeter stated that appellant provided two diffe rent reasons why she no longer has HUD housing. Vanmeter explained that appe llant told Vanmeter that she lost HUD housing because her fiancé/boyfriend had been living th ere, but on another occasion, appellant told Vanmeter that she gave it up because “she was tired of the neighbors.” {¶ 39} Vanmeter stated that appellant currently lives with appellant’s fiancé/boyfriend, his mother, and his grandfather. Vanmeter attempted to visit th e home, but appellant would not

allow her inside the home. {¶ 40} Vanmeter explained that she believes aw arding ACCS would serve the children’sATHENS, 12CA43 AND 12CA44 13 best interests because they “need to be in a perm anent home. They need to have stability in the home, in their life, and they need to know what’s going to happen, what is current with them. They need to make sure someone is able to provide, you know, to get them to their appointments.” She does not be lieve that appellant can provi de these things: “[J]ust the concerns with the housing and from what I’ve obs erved since I’ve had the case, uh, the concerns about the income and her you know, [her fiancé is ] going to be the one to provide for her and his income but also she’s looking at him to, you know, to get the trailer ready and so she hasn’t made attempts to even move into the place.” {¶ 41} Alan Boyd, the children’s guardian ad litem, testified that it is in the children’s best interests to be placed in a home together and raised by a “stable good supportive family.”

He stated that he does not believe that appellant presently is ab le to provide a stable, supportive family life for the children. Boyd testified that appellant has not been able to maintain an adequate income, to maintain a home environment fo r longer than seven months, or to maintain a stable relationship. Boyd stated that he belie ves that awarding ACCS permanent custody would

be in the children’s best interests. {¶ 42} On November 5, 2012, the trial court aw arded ACCS permanent custody of appellant’s four children. The cour t first rejected appellant’s argument that it lacked jurisdiction

over B.M. and reasoned: “In spite of mother’s choice to deliver in a hospital in Kentucky, the child

was a resident of Athens C ounty, Ohio, at the time of hi s removal by virtue of his

mother’s continued resi dency here. R.C. 2151.06; R.C. 2151.27(A)(1), and Juv.R. 10(A). Additionally, the facts esta blishing dependency occurred in AthensATHENS, 12CA43 AND 12CA44 14 County. R.C. 2151.04(D), R.C. 2151.24(A)(1 ). Finally, the matter is res judicata as the issue would be one of pers onal jurisdiction and was not raised in a direct appeal of the adjudication and original disposition of September 12, 2011.” {¶ 43} The court next found that awarding appe llee permanent custody of the children

would serve their best interests. The cour t considered the children’s interactions and interrelationships: “All of the children are placed together and appear to be bonded with each other. The foster parents report that th e children appear to be bonding with them. The fathers have not developed any bond with their respective children either because they are unwilling or disint erested. Mother was given many opportunities to visit with these children throughout the life of this case, but proved woefully inconsistent in that regar d. The children appear to love her, and some aspects of the interactions were a ppropriate, but mother demonstrated that she could not handle the mother-child relationship on a consistent, sustained basis.” The court further noted that B.M., the youngest child, was removed from a ppellant’s care almost immediately upon his birth and has never lived w ith either appellant or the father. {¶ 44} The court determined that none of the child ren were sufficiently mature to express their wishes in a rational manner. Regarding the three older children, the court explained: “The children are currently ages, six, five, and almost four. They have not lived with mother (even trial vi sits) since November 2010. The oldest children express a desire to see their mother, but due to their ages, immaturity, and lack of historical perspective, little weight can be given to these expressions as it might relate to custodial choices. It is certainly true that mother expresses love for the children and the children return that love.” {¶ 45} Regarding B.M.’s custodial history, the court found: “The child has spent his brief but entire life in foster care, having been placed there at birth. This motion for permanent custody was filed June 13, 2012, and the child was adjudicated dependent on July 29, 2011.”ATHENS, 12CA43 AND 12CA44 15 With respect to the three oldest children’s custodial history, the court noted that the children were adjudicated on December 15, 2010, that ACCS file d the permanent custody motion on June 13, 2012, and that the children have been in foster care and ACCS’s temporary custody during that

entire time. {¶ 46} The court found that all four children need and deserve a legally secure placement that can only be secured by a grant of permanent custody to ACCS. {¶ 47} The court additionally determined that the children’s fathers had no significant

involvement in their lives and th at they had abandoned the children. {¶ 48} In B.M.’s case, the court examined R. C. 2151.414(E)4) and (10) and determined that the child cannot be placed or should not be placed with either parent within a reasonable time. The court explained: “[Appellant] has proven wholly incapable of establishing and maintaining a permanent home for her children. From the onset of these cases it has been clear that mother is herself a dependent, either on government and social services assistance of the kind actions of others . From the earliest Court involvement, mother was failing to provide adequa te food, clothing, health care, and supervision for her children. Since th e removal of the children, mother has moved numerous times and never had a re sidence acceptable enough for even a home visitation. She has demonstrated a lack of commitment to case plan activities and cannot provide for her children. She has neither a high school diploma nor a GED, and has no employment history or skill set that would suggest any improvement in the future.” {¶ 49} The court additionally observe d that appellant was one hour late for the final day of the permanent custody hearing and that she cons istently failed to appear at various hearings involving the children. {¶ 50} The court thus determined that awarding ACCS permanent custody of the children

would serve their best interests a nd terminated appellant’s parental rights. This appeal followed.ATHENS, 12CA43 AND 12CA44 16

I {¶ 51} In her first assignment of error, appellant asserts that the trial court erred by awarding ACCS permanent custody. Specifically, appellant contends that the record does not contain clear and convincing evidence to suppor t the court’s finding that awarding ACCS permanent custody of the four children would serve their best interests. Appellant claims that the evidence shows that she established a “strong , loving bond” with the children and that she simply was “overwhelmed by the difficult task of raising thr ee very young children without

emotional or financial assistance from their father s.” Appellant asserts that if she had received further financial support from the ch ildren’s fathers, then “she proba bly could have dealt with the children’s problems as effectively as the foster parents.” {¶ 52} Within her first assignment of error, appe llant argues that the standard of review we traditionally have app lied in permanent custody cases is t oo deferential. She contends that when the burden of proof at tria l is clear and convincing, then a reviewing court must find more than “some competent and credible evidence” to affirm the judgment. Appellant asserts that in a permanent custody case, where the burden of proof is clear and convincing, then a reviewing

court must examine the record to determine wh ether clear and convincing indeed exists to support the trial c ourt’s judgment.

A

STANDARD OF REVIEW {¶ 53} A reviewing court will generally not disturb a trial court’s permanent custody decision unless the decision is against the manifest weight of the evidence. See In re M.H. , 4 th Dist. No. 11CA683, 2011-Ohio-5140, ¶29; In re A.S. , 4 th Dist. Nos. 10CA16, 10CA17, 10CA18,ATHENS, 12CA43 AND 12CA44 17 2010-Ohio-4873, ¶7. Accord In re K.M. , 6 th Dist. No. L-12-1345, 2013-Ohio-1477, ¶25; In re

J.H. , 11 th Dist. No. 2012-L-126, 2013-Ohio-1293, ¶91; In re R.G. , 10 th Dist. No. 12AP-748, 2013-Ohio-914, ¶15; In re D.W. , 8 th Dist. No. 98717, 2013-Ohio-272, ¶7. “‘Weight of the

evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credib le evidence sustains the issue which is to be established before them. Weight is not a questi on of mathematics, but de pends on its effect in inducing belief.”’” Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶12, quoting State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997) quoting Black’s Law Dictionary 1594 (6 th ed. 1990). {¶ 54} When an appellate court reviews whet her a trial court’s permanent custody decision is against the manifest weight of the evidence, the court “‘”weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new tr ial ordered.” ’” Eastley 3 at ¶20, quoting Tewarson v. Simon , 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9 th Dist. 2001), quoting Thompkins , 78 Ohio St.3d at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1 st Dist. 1983). Accord In re Pittman , 9 th Dist. No. 20894, 2002-Ohio-2208, ¶¶23-24.

3 The Eastley court clarified that the manifest weight standard that applies in criminal cases also applies in civil cases. Eastley at ¶17 and ¶23.ATHENS, 12CA43 AND 12CA44 18 {¶ 55} In a permanent custody case, the ultimate question for a reviewing court is “whether the juvenile court’s findings * * * were supported by clear and convincing evidence.”

In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E .2d 809, ¶43. “Clear and convincing

evidence” is: “The measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to th e allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasona ble doubt as in criminal cases. It does not mean clear and unequivocal.”

In re Estate of Haynes (1986), 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23. In determining whether a trial court based its decision upon clear and convincing evidence, “a reviewing court

will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel , 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990). Accord In re Holcomb , 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), 4 citing Cross

v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“On ce the clear and convincing standard has been met to the satisfaction of the [trial] court, the reviewing court must examine the record

and determine if the trier of f act had sufficient evidence before it to satisfy this burden of proof.”). Accord In re Adoption of Lay , 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In

4 Curiously, in Holcomb , the court “independent[ly] review[ed]” the re cord when determining whether an adoption petitioner proved, by clear and convincing evidence, that the respondent lacked justifiable cause for failing to communicate with his children. Id. at 370. It acknowledged in a footnote that the court of appeals had “apparently applied a ‘manifest weight of the evidence test.’” The court de termined that to the extent that the appe llate court had applied a manifest weight o f the evidence standard, “its error [was] harmless in light of our independent review of the record.” Approximately nine months later in another adoption case, however, the Ohio Supreme Court stated: “T he question of whether justifiable cause for failure to pay child support has been proven by clear and convinci ng evidence in a particular case is a determination for the probate court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence.” Masa , paragraph two of the syllabus.ATHENS, 12CA43 AND 12CA44 19 re Adoption of Masa , 23 Ohio St.3d 163, 165, 492 N.E.2d (1986) (stating that whether a fact has been “proven by clear and convincing evidence in a particular case is a determination for the [trial] court and will not be disturbed on appeal unless such determination is against the manifest weight of the evidence”). Thus, if the child ren services agency presented competent and credible evidence upon which the trier of fact r easonably could have form ed a firm belief that permanent custody is warranted, then the court’s decision is not against the manifest weight of

the evidence. In re R.L. , 2 nd Dist. Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶17, quoting In re A.U. , 2 nd Dist. No. 22287, 2008-Ohio-187, 9 (“A re viewing court will not overturn a court’s grant of permanent custody to the state as being contrary to the manifest weight of the evidence ‘if the record contains competent, cr edible evidence by which the court could have

formed a firm belief or convic tion that the essential statutor y elements * * * have been established.’”); In re J.W. , 3 rd Dist. No. 13-12-10, 2012-Ohio-3528, ¶35, quoting In re Baby Boy

W. , 3 rd Dist. No. 5-10-39, 2011-Ohio-2337, ¶20 (“This Court will not overturn the juvenile court’s judgment as being agains t the manifest weight of the evidence ‘if the record contains competent, credible evidence by which the court could have formed a be lief or conviction that the essential statutory elements for a termination of parental rights have been established.’”); In

re M.Z. , 9 th Dist. No. 11CA010104, 2012-Ohio-3194, ¶22; In re K.N. , 1 st Dist. No. 120111, 2012-Ohio-2189, ¶12 (“A reviewing cour t will not reverse the judgment of a trial court as being against the manifest weight of the evidence if the record contains some competent, credible

evidence from which the court could have found that the essential statutory elements for permanent custody had been established by clear and convincing evidence.”). {¶ 56} Once the reviewing court finishes its examination, the court may reverse theATHENS, 12CA43 AND 12CA44 20 judgment only if it appears that the fact-finder, when resolving the conflicts in evidence, “‘clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be

reversed and a new tria l ordered.’” Thompkins , 78 Ohio St.3d at 387, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1 st Dist. 1983). A reviewing court should find a trial court’s permanent custody decision against the manifest weight of the evidence only in the “‘exceptional case in which the evidence weighs heavily against the [decision].’” Thompkins , 78 Ohio St.3d at 387, quoting Martin , 20 Ohio App.3d at 175; accord State v. Lindsey , 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000). {¶ 57} Furthermore, when reviewing evidence unde r the manifest weight of the evidence standard, an appellate court generally must defer to the fact-finder’s credibility determinations. Eastley at ¶21. As the Eastley court explained: “[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable in tendment must be made in favor of the judgment and the finding of facts. * * * If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consis tent with the verdict and judgment, most favorable to sustai ning the verdict and judgment.’” Quoting Seasons Coal Co., Inc. V. Cleveland , 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3, quoting 5 Ohio Jurisprudence 3d, Appella te Review, Section 60, at 191-192 (1978). {¶ 58} Moreover, as this court previous ly explained in State v. Murphy , 4 th Dist. No. 07CA2953, 2008–Ohio–1744, ¶31:

“It is the trier of fact’s role to determine what evidence is the most credible and convincing. The fact finder is ch arged with the duty of choosing between two competing versions of events, both of which are plausible and have some factual support. Our role is simply to insure the decision is based upon reason and fact. We do not second guess a deci sion that has some basis in these two factors, even if we might see matters differently.”ATHENS, 12CA43 AND 12CA44 21

Accord Bugg v. Fancher , Highland App. No. 06CA12, 2007–Ohio–2019, ¶9. Additionally, deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well (Emphasis sic).” Davis v. Flickinger , 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

Accord In re Christian , 4 th Dist. No. 04CA 10, 2004–Ohio–3146, ¶7. As the Ohio Supreme Court long-ago explained: “In proceedings invol ving the custody and welfare of children the power of the trial court to ex ercise discretion is peculiarly important. The knowledge obtained through contact with and observa tion of the parties and through independent investigation can not be conveyed to a reviewing court by printed record.” Trickey v. Trickey , 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). Furthermore, unlike an ordi nary civil proceeding in which a jury has no contact with the parties before a trial, in a pe rmanent custody case, a trial court judge may have significant contact with the parties before a perm anent custody motion is even filed. In such a situation, it is not unreasonable to presume that th e trial court judge had far more opportunities to evaluate the credibility, demeanor, attitude, etc., of the parties than this court ever could from a mere reading of the permanent custody hearing transcript. {¶ 59} We also observe that Eastley did not entirely do away with the C.E. Morris Co. “some competent, credible evidence” standard that we have applied in the past. Instead, the Eastley court explained that “[t]he phrase ‘some co mpetent, credible evidence’ * * * presupposes evidentiary weighing by an appellate court to determine whether the evidence is competent and

credible.” Id. at 15 (emphasis in Eastley ). Accordingly, even in a permanent custody case where the burden of proof is cl ear and convincing, we will not substitute our judgment for theATHENS, 12CA43 AND 12CA44 22 trial court’s as long as some competent, credible, evidence indeed exists. E.g. , In re K.M. at ¶25; In re R.G. , supra; In re M.H. , 2 nd Dist. No. 25084, 2012-Ohio-5216, ¶13. {¶ 60} Given the foregoing, we reject appellant’s argument that our sta ndard of review in a permanent custody case is more stringent th an one “applicable to more mundane and less permanent matters.” The manifest weight standard remains the same. See Eastley at ¶17 (stating that civil cases are not treated “differently from criminal cases with regard to appellate review on the issues of sufficiency and manifest weight”). In civil and criminal, and by analogy permanent custody–cases, “evidence must * * * exist on each element (sufficiency) and the evidence on each element must satisfy the burden of persuasion (weight).” Id. at ¶19. {¶ 61} To the extent that prior decisions from this court applied a more deferential “civil” manifest weight sta ndard, the Ohio Supreme Court’ s 2007 decision in State v. Wilson , 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, appeared to sanction such a standard. In Wilson , the court clearly distinguished between a civil and a criminal manifest weight of the evidence

standard and stated that the civil st andard is more de ferential. Id. at ¶¶24-26. Accord In re

M.H. , 9 th Dist. No. 09CA28, 2009-Ohio- 6911, ¶¶11-13. After Eastley , however, Wilson ’s distinction between civil and criminal manifest weight standards appears to have limited or no validity. {¶ 62} Despite Eastley ’s attempt to clarify the manifest weight standard of review, we

believe that cause for conf usion persists. Eastley appears to endorse the “some competent, credible evidence” standard, yet it also states that it is the same standard that applies in criminal cases. In criminal cases, however, the Ohio Supreme Court, this court, and others have framed

the issue as whether the record contains “subs tantial competent, credible evidence.” E.g. , StateATHENS, 12CA43 AND 12CA44 23 v. Stallings , 89 Ohio St.3d 280, 289, 731 N.E.2d 159 (2000); State v. Getsy , 84 Ohio St.3d 180, 193-194, 702 N.E.2d 866 (1998); State v. Davis , 4 th Dist. No. 12CA3336, 2013-Ohio-1504, ¶15;

State v. Miles , 8 th Dist. No. 81480, 2003-Ohio-2651, ¶33. Fu rthermore, in In re Mullen , 129 Ohio St.3d 417, 2011-Ohio-3361, 953 N.E.2d 302, ¶15, the court cited two cases with approval,

one after the other: Masitto v. Masitto , 22 Ohio St.3d 63, 488 N.E.2d 857 (1986); and Bechtol v.

Bechtol , 49 Ohio St.3d 21, 550 N.E.2d 178 (1990), syllabus. In Masitto , the court used the C.E.

Morris “some [competent], credible evidence” standard to review the trial court’s factual finding.

Id. at 66 (emphasis added). In Bechtol , the court stated: “Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court.” 5 Id. at syllabus (emphasis added). Althoug h we may be in error, we neverthe less believe that a difference exists

between “some” evidence and “substantial” evid ence. The Ohio Supreme Court, however, seems to use the terms interchangeably. Perhaps the Ohio Supreme Court will have an opportunity to clarify whether a ma nifest weight standard of revi ew involves a consideration of

whether the record contains “som e” or “substantial” competent, credible evidence. For now, no

matter the standard of review ter minology that courts (including th is court) have used, we believe that the essential question that we must resolve when reviewing a permanent custody decision under the manifest weight of the evidence standard is whether the greater amount of competent, credible evidence presented at trial produced in th e trier of fact’s mind a firm belief or conviction

5 Davis v. Flickinger presents another reason why confusion may persist. Flickinger describes the standard of review applicable to custody proceedings as “abu se of discretion.” It then cites the Bechtol “substantial amount of credible and competent evidence” standard. Id. at 418. We observe, however, that neither case involved a trial court’s award of permanent custody to a children services agency.ATHENS, 12CA43 AND 12CA44 24 that permanent custody was warranted. See In re J.P.B. , 4 th Dist. No. 12CA34, 2013-Ohio-787 (observing that clear and convincing evidence s upported trial cour t’s permanent custody award);

In re R.S. , 4 th Dist. No. 11CA29, 2012-Ohio-2016 (same).

B

PERMANENT CUSTODY PRINCIPLES {¶ 63} A parent has a “fundamental liberty interest” in the care, custody, and management of his or her child and an “essential” and “basic ci vil right” to raise his or her children. Santosky v. Kramer , 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray , 52 Ohio St.3d 155, 156, 556 N.E.2d 1169 (1990); accord In re D.A. , 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829. A parent’s righ ts, however, are not absolute. D.A. at ¶11. Rather, “‘it is plain that the natural rights of a parent * * * are always subject to the ultimate welfare of the child, which is the pole star or controlling principle to be observed.’” In re Cunningham , 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C. , 300 So.2d 54, 58 (Fla.App.1974). Thus, the state may terminate pa rental rights when a child’s best interest

demands such termination. D.A. at ¶11. {¶ 64} Before a court may award a children services agency permanent custody of a child, R.C. 2151.414(A)(1) requires the court to hol d a hearing. The primary purpose of the hearing is to allow the court to determine whether the child’s best interests would be served by permanently terminating the parental relationshi p and by awarding permanent custody to the agency. See R.C. 2151.414(A)(1). Additionally, wh en considering whether to grant a children services agency permanent custody, a trial cour t should consider the underlying principles of R.C. Chapter 2151:[Cite as In re R.M. , 2013-Ohio-3588.] (A) To provide for the care, pr otection, and mental and physical development of children * * *; * * * (B) To achieve the foregoing purpose[], whenever possible, in a family environment, separating the child from its parents only when necessary for his welfare or in the interests of public safety.

C

PERMANENT CUSTODY FRAMEWORK {¶ 65} R.C. 2151.414(B)(1) permits a tria l court to grant permanent custody of a child to a children services agency if the court determin es, by clear and convincing evidence, that the child’s best interest would be served by the award of permanent custody and that: (a) The child is not abandoned or orphaned or has not been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or mo re months of a consecutive twenty-two month period ending on or after Marc h 18, 1999, and the child cannot be placed with either of the child’s parents within a reasonable time or should not be placed with the child’s parents. (b) The child is abandoned. (c) The child is orphaned, and there ar e no relatives of the child who are able to take permanent custody. (d) The child has been in the tempor ary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two m onth period ending on or after March 18,

1999. {¶ 66} Thus, before a trial court may award a children services agency permanent custody, it must find (1) that one of the circum stances described in R.C. 2151.414(B)(1) applies, and (2) that awarding the children services agen cy permanent custody would further the child’s

best interests.ATHENS, 12CA43 AND 12CA44 26 {¶ 67} In the case at bar, appellant does not challenge the trial court’s R.C. 2151.414(B)(1) findings. Instead, she limits her argu ment to the trial c ourt’s best interest findings. Thus, we do not address the court’s R.C. 2151.414(B)(1) findings.

D

BEST INTERESTS {¶ 68} R.C. 2151.414(D) requires a tria l court to consider speci fic factors to determine whether a child’s best interests will be served by granting a children services agency permanent custody. The factors include: (1) the child’s interaction and interrelationship with the child’s parents, siblings, relatives, fo ster parents and out-of-home provi ders, and any other person who may significantly affect the child; (2) the child’s wishes, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the child’s maturity; (3) the child’s custodial history; (4) the child’s need for a le gally secure permanent placement and whether that type of placement can be achieved without a gran t of permanent custody to the agency; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11) apply. 6

6 R.C. 2151.414(E)(7) to (11) provide as follows: (7) The parent has been convicted of or pleaded guilty to one of the following: (a) An offense under sectio n 2903.01, 2903.02, or 2903.03 of th e Revised Code or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to an offense described in those sections and the victim of th e offense was a sibling of th e child or the victim was another child who lived in the parent’s ho usehold at the time of the offense; (b) An offense under sectio n 2903.11, 2903.12, or 2903.13 of th e Revised Code or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to an offense described in those sections and the victim of th e offense is the child, a sibling of the child, or another child who lived in the parent's househ old at the time of the offense; (c) An offense under division (B)(2) of section 2919.22 of the Revised Code or under an existing or former law of this state, any other state, or the United States that is substantially equivalent to the offenseATHENS, 12CA43 AND 12CA44 27 {¶ 69} In the case at bar, competent and credib le evidence exists from which the trial

court could have formed a firm belief that aw arding ACCS permanent custody would serve the children’s best interests. Regarding the first best interest factor (the child’s interaction and interrelationships), the evidence shows that a ppellant loves her child ren and would like to

maintain her mother-child bond with the childre n. The evidence also shows that the children appeared happy to see their mother, displayed aff ection toward her, and r ecognized appellant as their mother. Unfortunately, however, appe llant has been unable to maintain a home

environment that would allow her to share hom e interaction with the children. She showed promise by obtaining a sizeable subsidized home, but she either lost that housing because she instead chose to live with her fiancé or she gave up the housing because she was "tired of dealing

described in that section and the child, a sibling of the child, or another child who lived in the parent’s household at the time of the offens e is the victim of the offense; (d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or 2907.06 of the Revised Code or under an existing or former law of this st ate, any other state, or the United States requiring treatment of the parent was journalized as part of a dis positional order issued with respect to the child or an order was issued by any other court requiring treatment of the parent. (e) A conspiracy or attempt to commit, or complicity in committing, an offense described in division (E)(7)(a) or (d) of this section. (8) The parent has repeatedly wi thheld medical treatment or food from the child when the parent has the means to provide the treatment or food, and, in the case of withheld medical treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or defect of the child by spiritual means through prayer alone in accordance with the tenets of a recognized religious body. (9) The parent has placed the child at substantial ri sk of harm two or more times due to alcohol or drug abuse and has rejected treatment two or more time s or refused to participate in further treatment two or more times after a case plan issued pursuant to section 2151. 412 [2151.41.2] of the Revised Code. (10) The parent has abandoned the child. (11) The parent has had parental rights involunt arily terminated pursuant to this section or section 2151.353 [2151.35.3] or 2151.415 [2151.41.5] of the Revised Code with respect to a sibling of the child that is substantially equivalent to an offense described in those sections and the victim of the offense is the child, a sibling of the child, or another child who lived in the parent's household at the time of the offense[.]ATHENS, 12CA43 AND 12CA44 28 with the neighbors." Neither r eaction shows a mother who is fi rmly committed to being reunited with her children in a home setting. Thus, th roughout the history of the case, appellant’s interactions with the children have been limited to supervised or monitored visits. During these visits, ACCS caseworkers did not believe that appellant adequately supervised the children on a consistent basis. While ACCS caseworkers admittedly observed some positive mother-child interactions, they also observed appellant failing to supervise one or more children or failing to properly interact with the youngest child. Furt hermore, the ACCS casew orkers stated that appellant failed to maintain consistent visita tion. She did not show up for thirty-three scheduled

visits and canceled nineteen. {¶ 70} The four children presently live in the same foster home where all of their basic needs appear to be met. The oldest child has undergone counselin g and has improved his behavioral issues since being removed from appellant’s custody. The trial court found that the

children are bonded to each other. {¶ 71} With respect to the next best interest factor (the child’s wishes), the court

determined that the children are not mature enough to express their wishes. We observe, however, that the guardian ad litem recommended that the court award ACCS permanent custody. {¶ 72} Regarding the third best interest factor (t he child’s custodial history), the evidence

shows that the three oldest children had been in ACCS’s temporary cu stody for approximately eighteen months when ACCS f iled for permanent custody. The youngest child had been in ACCS’s temporary custody for nearly his en tire one-year-old life when ACCS filed for permanent custody. At no point during B.M.’s life did he live with appellant. The three oldestATHENS, 12CA43 AND 12CA44 29 children have not lived with appellant since their removal in November 2010. All of the

children have remained in the same foster home since their removals. {¶ 73} With respect to the fourth factor (the ch ild’s need for a legally secure permanent placement and whether that placement can be achieved without a grant of permanent custody),

the evidence demonstrates that the children n eed a legally secure permanent placement which they cannot achieve without a grant of permanent custody. Appellant has demonstrated that she is not capable of maintaining a safe, stable, permanent home for the children. While she has made attempts and showed some promise, she also gave up suitable housing because she was tired of the neighbors or because she wanted to live with her boyfriend/fiancé. She thus appears to have elevated her own desires (with respect to her disagreements with the neighbors or with respect to her boyfriend/fiancé) ove r her desire to have the childre n returned to her in a suitable home environment. Moreover, the ACCS caseworke rs testified that appe llant, despite repeated prompting, failed to provide for the children’ s most basic needs on a consistent basis. Furthermore, ACCS did not locate any other suitable legally secure permanent placement. Thus, without a grant of permanent custody to ACCS, the children lack a legally secure permanent placement. {¶ 74} Consequently, we believe that the foregoing facts constitute competent and

credible evidence from which the trial court reas onably could have formed a firm belief that permanent custody would serve the children’s best interests. Even if the facts show that appellant has some admirable qualities, the facts sufficiently demonstrate that she has been unwilling to provide consistent and proper care for her children. The children’s best interests

demand more than inconsistent care, supervision, housing, and food. Although appellantATHENS, 12CA43 AND 12CA44 30 showed some promise, sadly she failed to live up to her potential. She had nearly a year and one-half to show that she is capable of provi ding a suitable home environment and proper care for her three older children, yet during that time, she could not demonstrate these capabilities on a consistent basis. When B.M. was born, she similarly failed to these capabilities on a

consistent basis. We do not ta ke appellant’s progress obtaining housing lightly, but we observe that appellant either ga ve it up or lost it due to her own ac tions. Her decision to give it up or lose it was not based upon any reason regarding th e children’s safety. Instead, she placed her personal desires regarding her living arrangements over the living arrangements that would best serve her children. Placing one’s personal, non-essential inte rests and desires over one’s

children’s best interests does not display the actions of a parent intent on regaining custody of his or her children. Thus, the tria l court’s decision is not agains t the manifest weight of the

evidence. {¶ 75} Accordingly, based upon the foregoing r easons, we overrule appellant’s first assignment of error.

II {¶ 76} In her second assignment of error, appellant asserts that the trial court improperly determined that it had jurisdiction to award ACCS temporary emergency custody of B.M. Appellant argues that when a children services agency seeks temporary emergency custody of a child, then R.C. 3127.18(A) (not R.C. 3127.15) app lies. Appellant cont ends that the court lacked jurisdiction to award ACCS tempor ary emergency custody under R.C. 3127.18 because B.M. was born in Kentucky and wa s not present in the state of Ohio when the court asserted its jurisdiction.[Cite as In re R.M. , 2013-Ohio-3588.] {¶ 77} Appellant additionally asserts that the trial court improperly determined that her jurisdictional challenge was “res judicata.” Appellant contends that the UCCJEA delineates a trial court’s power to issue a child custody decision and thus defi nes its subject-matter jurisdiction. Appellant correctly observes that issues relatin g to a court’s subject matter jurisdiction may be raised at any time and can never be waived. “‘Jurisdiction’ means ‘the courts’ statutory or constitutional power to adjudicate the case.’ (Emphasis omitted.) Steel Co. v. Citizens for a Better Environment (1998), 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210; Morrison v. Steiner (1972), 32 Ohio St.2d 86, 87, 61 O.O.2d 335, 290 N.E.2d 841, paragraph one of the syllabus. The te rm encompasses jurisdiction over the subject matter and over the person. State v. Parker , 95 Ohio St.3d 524, 2002–Ohio–2833, 769 N.E.2d 846, ¶22 (Cook, J., dissenting). Because subject-matter jurisdiction goes to the power of the court to adjudicate the merits of a case, it can never be waived and may be challenged at any time. United States v. Cotton (2002), 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860; State ex rel. Tubbs Jones v. Suster (1998), 84 Ohio St.3d 70, 75, 701 N.E.2d 1002.” Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶11. “‘The existence of the trial court’s subject-m atter jurisdiction is a question of la w that we review de novo.’” Barber

v. Williamson , 4 th Dist. No. 11CA3265, 2012-Ohio-4925, ¶ 12, quoting Yazdani-Isfehani v.

Yazdani-Isfehani , 170 Ohio App.3d 1, 2006-Ohio-7105, 865 N.E.2d 924, ¶20; accord In re E.G. , 8 th Dist. No. 98652, 2013-Ohio-495, ¶9. {¶ 78} R.C. 2151.23(A)(2) provides that the juve nile court has exclusive original jurisdiction to determine custody of a child who is not a ward of a court of this state. R.C. 2151.23(F)(1) further provides, however, that a juven ile court must exercise that jurisdiction in accordance with R.C. Chapter 3127, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶46 (explaining that even though a statute provide s a juvenile court with “basic statutoryATHENS, 12CA43 AND 12CA44 32 jurisdiction to determine custody matters[,] * * * a more specific statute like R.C. 3127.15 [may] patently and unambiguously divest[] the court of such jurisdiction”). {¶ 79} The UCCJEA defines a trial court’s subject-matter jurisdiction to issue a child custody determination. See Rose n at ¶44 (stating that erroneous exercise of jurisdiction under the UCCJEA “is not a mere error in the exercise of jurisdiction; it is a defect in the Ohio court’s subject-matter jurisdiction”). T hus, claimed errors in exercisi ng jurisdiction under the UCCJEA

“cannot be waived.” Id. at ¶45. In the case sub judice, we therefore agree with appellant’s argument that the trial court improperly determined that she could no longer challenge its jurisdiction after the adjudication and initial disposition phases. Our agreement with her argument, however, ends there. {¶ 80} R.C. 3127.15(A) sets forth “the exclusive jurisdictional basis for making a child custody determination by a c ourt of this state.” R.C. 3127.15(B). R.C. 3127.15(A) states:

(A) Except as otherwise provided in section 3127.18 of the Revised Code, a court of this state has jurisdiction to make an initial determination in a child custody proceeding only if one of the following applies: (1) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. (2) A court of another state does not have jurisdiction under division (A)(1) of this section or a court of the home state of the child has declined to exercise jurisdiction on the basis that this state is the more appropriate forum under section 3127.21 or 3127.22 of the Revised Code, or a similar statute of the other state, and both of th e following are the case: (a) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a signifi cant connection with this state other than mere physical presence. (b) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships. (3) All courts having jurisdiction under division (A)(1) or (2) of thisATHENS, 12CA43 AND 12CA44 33 section have declined to exercise juri sdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section 3127.21 or 3127.22 of the Revised Code or a similar statute enacted by another state. (4) No court of any other state woul d have jurisdiction under the criteria specified in division (A)(1), (2 ), or (3) of this section. {¶ 81} R.C. 3127.15(A) thus provides a court with f our types of jurisd iction to make the initial determination in a child custody pr oceeding: (1) home-st ate jurisdiction, (2) significant-connection jurisdiction, (3) jurisdiction because of dec lination of jurisdiction, and (4) default jurisdiction. Rosen at ¶31. Because the primary purpos e of the UCCJEA is “‘to avoid jurisdictional competition and conflict with courts of other jurisdictions’” in custody matters, the UCCJEA gives “‘jurisdictional prio rity and exclusive continuing ju risdiction to the home state.’”

Rosen at ¶20, quoting In re Palmer , 12 Ohio St.3d 194, 196, 465 N.E.2d 1312 (1984), and

Rosen at ¶21, quoting Annotation, Construction a nd Operation of Uniform Child Custody Jurisdiction and Enforcement Act, 100 A.L.R.5th 1, 20, Section 2[b] (2002). {¶ 82} If none of the foregoing types of jurisd iction apply, a court may examine whether R.C. 3127.18, the temporary emergency jurisd iction exception, applies. In re S.S. , 2 nd Dist. No. 22980, 2008-Ohio-294, fn.3 (observing that R.C. 3127.18 is an exception to R.C. 3127.15). R.C. 3127.18 states that an Ohio court “has tempor ary emergency jurisdiction if a child is present in this state and either * * * (1) [t]he child has been abandoned[; or] (2) [i]t is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected

to or threatened with mis treatment or abuse.” {¶ 83} In the case at bar, the trial court po ssessed home-state jurisdiction under R.C. 3127.15(A)(1). Ohio was the child’s home state on the date that ACCS commenced the childATHENS, 12CA43 AND 12CA44 34 custody proceeding. R.C. 3127.01(B)(7) defines “ home state” as “the st ate in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately preceding the commencement of a child custody pro ceeding and, if a child is less than six months old, the state in which the child lived from birth with [a parent] * * *.” The statute further provides that “[a] period of temporary absence of an y of them is counted as part of the six-month or other period.” “Any of them” appears to refe r to the individuals previously mentioned in the statute: the child, the child’s parent (s), or a person acting as a parent. {¶ 84} In the case sub judice, the child did not live with appellant in Ohio for at least six months immediately preceding the commencement of the child custody proceeding. Instead, the child was a mere two days old when he was removed from appellant’s custody. Because the child was less than six months old, the home state is the state in which the child lived with appellant from birth. B.M., however, did not physica lly live in Ohio with appellant at any point from his birth. Instead, he was born in Kentucky and remained in Kentucky for two days, until ACCS assumed temporary custody. Appellant undeniably lived in Oh io before she gave birth to the child in Kentucky. Appellant did not move to Kentucky and the record contains no evidence

that she intended to move to Ke ntucky. Instead, the trial court found that she went to Kentucky solely to give birth, not to relo cate. Appellant thus temporarily absented herself from Ohio. By extension, B.M. also was temporarily absent from Ohio. Under R.C. 3127.01(B)(7), the time of appellant’s and B.M.’s temporar y absence from Ohio counts when determining which state the

child lived in from birth. We therefore believe that Ohio was B.M.’s home state when ACCS commenced the child custody proceeding. Moreover, we observe that under R.C. 2151.06, a

child is deemed to have the same residence or legal se ttlement as the child’s parent(s). BecauseATHENS, 12CA43 AND 12CA44 35 the trial court possessed jurisdiction as B.M.’s hom e state, it had no need to consider whether any other provision, such as R.C. 3127.18, authorized it to exercise jurisdiction in the child custody proceeding. {¶ 85} Additionally, even if the trial court did not have home-state jurisdiction because the child had spent the two days of his life in a Kentucky hospital and ha d yet to physically live in Ohio with appellant, th e court possessed significant- connection jurisdiction. The significant-connection jurisdicti onal provision applies if a court in another state does not have home-state jurisdiction and (1) “[t]he child and the child’s parents, or the child and at least one person acting as the parent, have a significant c onnection with [Ohio] other than mere physical presence; and (2) “[s]ubstantial evidence is ava ilable in [Ohio] concerning the child’s care, protection, training, and personal relationships.” {¶ 86} In the case sub judice, no evidence in the record supports a conclusion that Kentucy is the home state. Appe llant did not live in Kentucky. B.M. did not live in Kentucky. B.M.’s sole connection to Kentucky was appellant’s decision to give birth in that state. As the trial court found, appe llant traveled to Kentucky with the sole intent of giving birth. The evidence amply shows that both appellant and the child have a significant connection to Ohio. When ACCS filed the complaint, appellant resided in Ohio and her remaining three children lived in Ohio with a foster family. The vast majority of the evidence concerning B.M.’s care, protection, training, and persona l relationships was available in Ohio. The only possible evidence concerning B.M. that occurred in Kent ucky was the circumstan ce of his birth and his care in the two days following his birth. Thus, even if the trial court did not have home-state jurisdiction, we believe that it properly exercised significan t-connection jurisdiction.ATHENS, 12CA43 AND 12CA44 36 {¶ 87} Appellant neverthele ss asserts that R.C. 3127.15 does not apply when the child custody proceeding involves temporary emergency custody. Appellant appears to argue that R.C. 3127.18 is the only statute that authorizes a court to exercise juri sdiction in a temporary emergency custody proceeding. We do not agree. {¶ 88} Resolving appellant’s argument that R.C. 3127.18 defined the trial court’s subject-matter jurisdiction to award ACCS tempor ary emergency custody of the child requires us to interpret the UCCJEA statutes. The interpretation of a statute is a question of law that we review de novo. In re Adoption of B.M.W. , 4 th Dist. No. 10CA899, 2010-Ohio-5214, ¶13. “The primary goal of statutory construc tion is to ascertain and give effect to the legislature’s intent in enacting the statute. The court must first look to the plain language of the statute itself to determine the legislative intent. We apply a statute as it is written when its mean ing is unambiguous and definite. An unambiguous statute must be applied in a manner consistent with the plain meaning of the statutory language.”

State v. Lowe , 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E .2d 512, ¶9 (citations omitted). {¶ 89} R.C. 3127.15 begins by stating that “[e]xcept as otherwise provided in R.C. 3127.18,” an Ohio court “has jurisdiction to make an initial determination in a child custody proceeding only if one” of the listed circum stances applies. R.C. 3127.01(B)(8) defines “[i]nitial determination” as “the first custody determination concerning a particular child.” {¶ 90} R.C. 3127.18 states: (A) A court of this state has temporary emergency jurisdiction if a child is present in this state and either of the following applies: (1) The child has been abandoned. (2) It is necessary in an emergency to protect the child because the child * * * is subjected to or threaten ed with mistreatment or abuse. {¶ 91} A plain reading of R.C. 3127.15(A) shows that R.C. 3127.18 is an exception toATHENS, 12CA43 AND 12CA44 37 the four types of jurisdiction listed in R.C. 3127.15. In re S.S. , supra . This means that an Ohio court must have jurisdiction unde r R.C. 3127.15(A) to make an in itial custody determination, but if it does not, then R.C. 3127.18 may empower it to exercise temporary emergency jurisdiction. {¶ 92} R.C. Chapter 3127 does not define “tem porary emergency jurisdiction” and nothing in R.C. 3127.15(A) suggests that an “initial determinati on” cannot include a determination made in a temporary emergency child custody proceeding. A temporary emergency child custody determination may in fact be “the first custody determination concerning a particular child.” R.C. 3127.18(B)(8). Notably, R.C. 3127.18 does not state that a trial court has temporary emergency jurisdiction to issue a temporary emergency custody

determination only in the specified circ umstances. R.C. 3127.18(A) concerns when a court may exercise jurisdiction outside th e four situations listed in R. C. 3127.15(A). R.C. 3127.18(A) thus speaks to the type of jurisdiction a court may exer cise, not to the type of custody determination it may issue. R.C. 3127.18(A) does not define when a court may make an “i nitial determination” and does not purport to limit a court’s authority to make an “in itial determination” that involves a temporary emergency child custody determination to only those situations falling within R.C. 3127.18(A). Instead, R.C. 3127.18(A) concerns temporary emergenc y jurisdiction–that is, the statute defines when a court may exercise jurisdiction outside the confines of R.C. 3127.15(A). {¶ 93} To read R.C. 3127.18 as appellant suggest s would frustrate the purpose of the UCCJEA–to avoid jurisdictional c onflicts and to afford the home-state jurisdictional priority.

Rosen , supra . Moreover, interpreting the statute as a ppellant suggests means that no state could ever issue any type of temporary emergency cust ody order unless the child was physically present

in that state. R.C. 3127.18 is not directed towa rds every situation that calls for a temporaryATHENS, 12CA43 AND 12CA44 38 emergency custody order. Instead, the statute is intended to provide a st ate with temporary and emergency jurisdiction over a child who dema nds immediate protection due to abandonment, mistreatment, or abuse. The statute has no applicability unless the child is abandoned or subjected to or threatened with mistreatment or abuse. See United States Department of Justice, Office of Juvenile Justice and Delinquency Prevention, The Uniform Child-Custody and Enforcement Act, December 2001, 6 (stating that the “UCCJEA narrows the * * * definition of ‘emergency’ by excluding neglect cases * * *”). {¶ 94} Thus, R.C. 3127.18 is an exception to R.C. 3127.15 and provides an additional basis under which a court may exer cise jurisdiction. R.C. 3127.18 is not the exclusive means by which a court may exercise jurisdiction in a temporary emergency custody proceeding. Rather, the purpose of the statute is to provide a cour t that otherwise lacks jurisdiction under R.C. 3127.15 with jurisdiction if a tem porary emergency situation pres ents itself. Contrary to appellant’s argument, R.C. 3127.18 does not apply every time a comp laint is filed that seeks temporary emergency custody. C onsequently, we disagree with a ppellant that the trial court erroneously exercised jurisdicti on over ACCS’s complaint that requested temporary emergency custody of B.M. {¶ 95} Accordingly, based upon the foregoing r easons, we overrule appellant’s second assignment of error and affirm the trial court’s judgment.

JUDGMENT AFFIRMED.[Cite as In re R.M. , 2013-Ohio-3588.] Harsha, J., concurring: {¶ 96} I concur in judgment and opinion excep t that I limit my finding in the second assignment of error on the trial court’s jurisd iction over B.M. to be that of “significant – connection” jurisdicti on under R.C. 3127.15(A)(2).[Cite as In re R.M. , 2013-Ohio-3588.] JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed. The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court, Juvenile Division, to carry this judgment into execution. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appella te Procedure. Hoover, J.: Concurs in Judgment & Opinion Harsha, J.: Concurs with Concurring Opinion

For the Court

BY: Peter B. Abele, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this documen t constitutes a final j udgment entry and the time period for further appeal commences from the date of filing with the clerk.