[Cite as In re E.M, 2013-Ohio-333.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

IN RE: : 

 CASE NO. CA2012-09-068 

 E.M., et al. : 

 O P I N I O N 

 : 2/4/2013 

 

 : 

 : 

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS 

JUVENILE DIVISION 

Case No. 2010 JC 04203 

Amanda List, 2400 Clermont Center Drive, Suite 204-A, Batavia, Ohio 45103, Guardian Ad 

Litem 

Brafford & Phillips, Suellen Brafford, 285 East Main Street, Batavia, Ohio 45103, for 

appellant 

D. Vincent Faris, Clermont County Prosecuting Attorney, David H. Hoffmann, 123 North Third 

Street, Batavia, Ohio 45103-3033, for appellee 

Anita Bechmann, 2340 Clermont Center Drive, Batavia, Ohio 45103, for Daniel M. 

 M. POWELL, J.

{¶ 1} Appellant, the biological mother of four children, appeals a decision of the 

Clermont County Court of Common Pleas, Juvenile Division, granting permanent custody of 

the children to a children services agency. 
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{¶ 2} Clermont County Department of Job and Family Services filed a complaint on 

November 30, 2010, alleging M.M., appellant's youngest child, was an abused child. The 

complaint alleged the child tested positive for cocaine and opiates at the time of his birth on 

November 21, 2010. The child underwent methadone treatment in the hospital for 

withdrawal. The complaint also alleged that the father refused to complete a drug screen 

despite multiple opportunities. In addition, the complaint alleged that the father was charged 

with aggravated robbery and abduction and there was a current warrant for his arrest. The 

agency also alleged in the complaint that M.M.'s three older siblings were dependent children 

based on the same facts. The three older children were removed from the home and all four 

children were placed in the temporary custody of the agency. 

{¶ 3} On January 25, 2011, M.M. was adjudicated an abused child and his siblings 

were adjudicated dependent children. Although they were initially placed with their paternal 

grandmother, the placement did not pass a home study, and all four children were placed in 

a foster home. 

{¶ 4} Appellant initially entered into drug treatment, but did not successfully complete 

the treatment. She tested positive for cocaine in February 2012, and admitted to the 

caseworker that she was using cocaine. The agency then moved for permanent custody of 

the children on March 22, 2012. 

{¶ 5} At a June 19, 2012 hearing on the permanent custody motion, the agency 

caseworker testified that the children have been in agency custody since November 30, 

2010. The caseworker testified that the children's father was convicted of and sentenced on 

criminal charges at the end of 2010. Because he was incarcerated, no case plan was 

prepared for the father. 

{¶ 6} A case plan was prepared for appellant that required her to complete substance 

abuse treatment, maintain sobriety, obtain and maintain housing and a source of income and 
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to attend visitation with the children. The caseworker testified that appellant did not complete 

the case plan. According to the caseworker, appellant spent a month in treatment at 

Northland at the beginning of the case. She attended a 90-day program at Stepping Stones 

in Portsmouth, Ohio, and asked for two extensions, but left before completing the second 

extension and never returned. The caseworker stated that the treatment center does not 

consider appellant as having successfully completed the program. The agency asked 

appellant to follow up on her substance abuse treatment with Clermont Recovery Center 

(CRC) and about a month later, appellant began services at the facility. In February 2012, 

she failed a drug screen at CRC, and in May 2012, she failed another drug test and stopped 

going to CRC. At the time of the hearing, appellant was not engaged in treatment. At the 

hearing, the caseworker stated that appellant has an appointment scheduled at the end of 

the week to try and get back into services at CRC. 

{¶ 7} The caseworker stated that appellant acknowledges that she needs drug 

addiction treatment, and has been candid about her drug use with the caseworker. Appellant 

shared with the caseworker that she was positive for cocaine in February and opiates in 

March. According to the caseworker, the mother claims she is on "benzos" for an ongoing 

seizure disorder, which has resulted in some positive tests, but has not been able to provide 

documentation for the agency. The caseworker indicated appellant reported that she does 

not have a doctor and goes to the emergency room for her medication, but appellant has not 

signed releases to allow the agency to verify the medical condition and use of prescription 

medication. 

{¶ 8} With regard to housing, the caseworker testified that she was "not entirely sure" 

where appellant lived for the first part of the case because appellant has not given an 

address until very recently. She indicated appellant was "bouncing around," living where she 

could with family and friends. In December 2011, appellant obtained a trailer that the 
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caseworker described as a "work in progress." According to the caseworker, appellant has 

done some work to the trailer, but more work is needed. The caseworker testified that 

appellant says she is working "under the table" but there has been no verification of her 

employment. The agency asked the employer to provide a letter, but has not received any 

response. 

{¶ 9} The caseworker further testified that appellant has visitation with her children 

one time per week and that the children are bonded to their mother. She indicated appellant 

has been consistent in her visits with the children nearly every week and has missed only one 

or two visits. She indicated the children were initially placed with their paternal grandmother 

and great-grandmother, but were placed in a foster home when the home study "fellthrough." She indicated the children express most often that they want to live with their 

grandmother. The caseworker stated that the current foster family is unable to adopt the 

children, but the agency has identified a family who is interested in adopting all four children 

and that family is in the process of completing the requirements for adoption. An agency 

adoption supervisor testified at the hearing and discussed the process of adoption for the 

children, which includes the children living in the potential home for six months before the 

adoption. 

{¶ 10} All of the children have special needs. The foster mother testified that the two 

oldest children were not in counseling when they moved into her home, but based on some 

concerns the foster mother experienced with the children, the children began counseling. 

E.M., who was 10 years old at the time of the hearing, did well in counseling sessions. She 

sees an eye doctor and is on an I.E.P. for math, reading and writing. 

{¶ 11} The foster mother testified that K.M., who was eight years old at the time of the 

hearing, attended counseling, and is still in need of the counseling sessions. K.M. has 

adjustment disorder and depressive symptoms. The foster mother testified that K.M. also 
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sees an eye doctor and they are in the process of developing an I.E.P. for a learning 

disability. 

{¶ 12} D.M., who was three years old at the time of the hearing, had eye surgery, 

attended Early Head Start and attended occupational therapy. He has been diagnosed with 

a sensory disorder and post-traumatic stress disorder. D.M. is on medication for severe 

behavior problems experienced in the home. 

{¶ 13} M.M. was treated for difficulty swallowing and aspirating liquids at birth and the 

foster mother testified that he has not grown out of the condition. He attended early Head 

Start and Help Me Grow programs and has some fine motor skills problems as a result of his 

drug addiction. 

{¶ 14} Appellant also testified at the permanent custody hearing. She stated that she 

has been in her current home for one and one-half months. She explained that she had to 

tear down walls and take everything out because of mold, and is putting in new floors and 

walls, but the process is stalled because she needs more money to continue. 

{¶ 15} Appellant indicated that she left during her second extension of drug addiction 

treatment because she felt she was "getting nowhere" with her kids and wanted to be closer 

to them. Appellant stated she did not feel she needed to be at the treatment facility because 

she had been through the treatments. 

{¶ 16} Appellant testified that she reported her failed drug screens to the caseworker. 

She claimed that the caseworker said appellant did not need paperwork to verify her 

prescription drug use and the caseworker did not ask for a medical release. Appellant 

claimed she was not at CRC on May 9, 2012, when a drug test was positive, and said she 

would have called the caseworker if she had a positive test. Appellant claimed the positive 

test for opiates was due to a prescription she got at the hospital after she had a seizure and 

fell. She testified that she missed a lot of appointments at CRC because transportation was 
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an issue. She admitted that she has struggled with a drug problem all her life and as recently 

as February was doing cocaine. 

{¶ 17} A Child Support Enforcement Agency worker testified that a child support order 

was established for appellant on April 1, 2011. The worker stated that appellant owes 

$4,184.90 on the child support order and the agency received only $358.12 in payments from 

a wage assignment order from a job appellant had with Belcan in January. Appellant testified 

that she is currently working a roofing job at $8.50 an hour for 35 hours a week that is "under 

the table." She explained that she is not able to drive and relies on her parents and motherin-law to take her where she needs to go. 

{¶ 18} A magistrate granted the motion for permanent custody, finding that the 

children had been in agency custody 12 of 22 months and that granting permanent custody 

was in the best interest of the children. After a hearing, objections to the magistrate's 

decision were overruled on September 12, 2012. Appellant now appeals the trial court's 

decision to grant permanent custody of the children to the agency and raises the following 

assignment of error for our review: 

{¶ 19} THE TRIAL COURT ERRED WHEN IT FOUND, BY CLEAR AND 

CONVINCING EVIDENCE, THAT GRANTING PERMANENT CUSTODY OF THE 

CHILDREN TO THE CLERMONT COUNTY DEPARTMENT OF JOB & FAMILY SERVICES 

("AGENCY") WAS IN THE BEST INTEREST OF THE CHILDREN. 

{¶ 20} Before a natural parent's constitutionally protected liberty interest in the care 

and custody of her child may be terminated, the state is required to prove by clear and 

convincing evidence that the statutory standards for permanent custody have been met. 

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review 

of a juvenile court's decision granting permanent custody is limited to whether sufficient 

credible evidence exists to support the juvenile court's determination. In re Starkey, 150 
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Ohio App.3d 612, 2002-Ohio-6892, ¶ 16 (7th Dist.). A reviewing court will reverse a finding 

by the juvenile court that the evidence was clear and convincing only if there is a sufficient 

conflict in the evidence presented. In re Rodgers (2000), 138 Ohio App.3d 510, 520 (12th 

Dist.). 

{¶ 21} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and 

award permanent custody to a children services agency if it makes findings pursuant to a 

two-part test. First, the court must find that the grant of permanent custody to the agency is 

in the best interest of the child, utilizing, in part, the factors of R.C. 2151.414(D). Second, the 

court must find that any of the following apply: the child is abandoned; the child is orphaned; 

the child has been in the temporary custody of the agency for at least 12 months of a 

consecutive 22-month period; or where the preceding three factors do not apply, the child 

cannot be placed with either parent within a reasonable time or should not be placed with 

either parent. R.C. 2151.414(B)(1)(a), (b), (c) and (d); In re E.B., 12th Dist. Nos. CA2009-10-

139, CA2009-11-146, 2010-Ohio-1122, ¶ 22. 

{¶ 22} The juvenile court found by clear and convincing evidence, and appellant does 

not dispute, that the children have been in the temporary custody of the agency for more than 

12 months of a consecutive 22-month period as of the date the agency filed the permanent 

custody motion. However, appellant does dispute the juvenile court's finding that granting 

permanent custody of the children to the agency is in the children's best interest. 

{¶ 23} Appellant first argues that the court abused its discretion in finding clear and 

convincing evidence to grant permanent custody to the agency. However, appellant's 

argument regarding this issue focuses on the court's dependency finding and the decision to 

place the children into foster care. Appellant contends that a dependency finding is based on 

whether a child is receiving proper care. She argues that the older three children lived with 

the parents without any concerns of the agency until the youngest child was born, and there 
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was no indication that the agency needed to place the children in foster care. 

{¶ 24} We need not reach the merits of this argument, however. An order adjudicating 

a child abused, neglected or dependent and awarding temporary custody is a final 

appealable order. In re Murray, 52 Ohio St.3d 155 (1990). The determination that a child is 

abused, neglected or dependent and award of temporary custody to a children services 

agency cannot be raised on appeal from a court's decision to grant permanent custody. In re 

H.F., 120 Ohio St.3d 499, 2008-Ohio-6810. 

{¶ 25} Appellant also argues that the trial court abused its discretion in granting 

permanent custody to the agency. She argues that the best interest factors support her 

argument. She contends the children are bonded to her, want to remain with family, that she 

spent six months in treatment and was unable to work on her case plan during that time. 

She also argues that the children will have to be moved again to be adopted and K.M. has 

adjustment disorder and depressive symptoms, causing her to struggle with changes in her 

environment. Appellant argues that she has obtained employment, is engaged in drug 

treatment and has housing, and she can provide a permanent home for the children. 

{¶ 26} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a 

permanent custody hearing: 

[T]he court shall consider all relevant factors, including, but not 

limited to the following: 

(a) The interaction and interrelationship of the child with the 

child's parents, siblings, relatives, foster caregivers and out-ofhome providers, and any other person who may significantly 

affect the child; 

(b) The wishes of the child, as expressed directly by the child or 

through the child's guardian ad litem, with due regard for the 

maturity of the child; 

(c) The custodial history of the child, including whether the child 

has been in the temporary custody of one or more public children 
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services agencies or private child placing agencies for twelve or 

more months of a consecutive twenty-two month period * * *; 

(d) The child's need for a legally secure permanent placement 

and whether that type of placement can be achieved without a 

grant of permanent custody to the agency; 

(e) Whether any of the factors in divisions (E)(7) to (11) of this 

section apply in relation to the parents and child. 

{¶ 27} With respect to R.C. 2151.414 (D)(1)(a), the juvenile court found that the 

evidence indicated that appellant is bonded to her children and the children are bonded to 

her. In considering R.C. 2151.414(D)(1)(b), the court found that according to the caseworker, 

the children most frequently expressed a desire to live with their paternal grandmother. The 

court further found that they have also expressed to the caseworker that they would like to 

live with their mother, but have strongly expressed that they want to live with their 

grandmother. The court further found that the guardian ad litem's report indicated that the 

two older children, E.M. and K.M., wish to live with their grandmother but the younger two 

children cannot state their preference of residency. 

{¶ 28} With respect to R.C. 2151.414 (D)(1)(c), the juvenile court found the parents 

cared for the three older children before they were taken into agency custody and the 

caseworker acknowledged this was a significant amount of time. The court further found that 

at the time of the hearing, the children had been in the same foster home for more than a 

year and that they have been in the temporary custody of the agency for more than 12 of 22 

months. 

{¶ 29} In considering R.C. 2151.414(D)(1)(d), the court found that the children need a 

legally secure, permanent placement. The guardian ad litem recommended permanent 

custody for the children and recommended that a permanent placement be identified and the 

children start a transition. The court further found that the paternal grandmother and greatgrandmother asked to be considered for placement, but the home study was not approved. 
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The court further considered the fact that the current foster parents did not want to adopt the 

children, but noted that the caseworker reported a family who was willing to take all four 

children. The court further indicated that an adoption supervisor detailed the steps 

necessary for adoption approval, including the required six-month placement period. 

{¶ 30} The court also found that the foster mother testified regarding the special needs 

of the children, along with the educational and other services the children require. The court 

found that "unquestionably, further changes in placement would be disruptive; particularly 

with respect to the three older children who have emotional issues." 

{¶ 31} The court considered the fact that the father was incarcerated and the fact that 

appellant admits that she has had drug problems in the past. The court found that appellant 

described what she was doing to control her drug problem and that she had only recently 

made efforts to provide stable housing. The court found that appellant thinks if she were 

given more time, she would get the house in order and complete the Clermont Recovery 

Center program. 

{¶ 32} The court concluded that the case began over one and one-half years prior to 

the hearing because of the consequences of appellant's drug use and its impact on her 

youngest child. The court found that appellant indicated drugs were involved all her life and 

she knew she had to "get right" when she lost her children. The court noted appellant used 

cocaine in February 2012 and has not successfully completed treatment. 

{¶ 33} The court determined that appellant cannot presently provide the kind of legally 

secure placement the children, all of whom have special needs, require. The court further 

found that based on appellant's history and conduct over the course of the agency's attempt 

for over 18 months to reunify her children with her, it does not appear that the children could 

be placed with appellant in a reasonable time. The court stated that although it will require 

another placement and a legal waiting period for adoption, the type of legally secure 
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placement the children need cannot be achieved without a grant of permanent custody to the 

agency. 

{¶ 34} Based on consideration of the above factors, the court determined that it was in 

the best interest of the children to grant permanent custody to the agency. We find no error 

in this determination. The court recognized that the children are bonded to appellant and that 

an additional placement and waiting period would have to be completed before an adoption 

could take place. The court recognized that the children have special needs and need 

permanency in their lives. Although appellant has made some progress, she still struggles 

with addiction, does not have housing that is currently appropriate for the children, and 

cannot provide the stability the children need. Appellant's assignment of error is overruled. 

{¶ 35} Judgment affirmed. 

 S. POWELL, P.J., and PIPER, J., concur.