[Cite as In re A.L. , 2021-Ohio-1982.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

IN RE: A.L. A.L. A.L. C.A. Nos. 20AP0047 20AP0048 20AP0049 20AP0052

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF WAYNE, OHIO CASE Nos. 2018 JUV-C 000901 2018 JUV-C 000902 2018 JUV-C 000903

DECISION AND JOURNAL ENTRY Dated: June 14, 2021

TEODOSIO, Judge. {¶1} Appellants, P.L. (“Mother”) and J.B. (“Father”), appeal from a judgment of the Wayne County Court of Common Pleas, Juvenile Division, that ter minated the parental rights of three minor children and placed them in the permanent custody o f Wayne County Children Services Board (“CSB”). This Court affirms.

I. {¶2} Mother is the biological mother of the three minor children at issue in this appeal,

who all have the same initials : A.L., born September 24, 2011; A.L., born June 27, 2013; and A.L., born January 7, 2016. Father, the only father to appeal, is th e biological father of only the youngest

child.2

{¶3} During June 2018, CSB opened an i nvestigation into this family because it had received referrals about Mother’s ability to supervise the chil dren and otherwise provide for their basic needs. CSB opened a voluntary case plan with the family at that time. The agency continued to receive referrals about the family, Mother did not comply wi th the voluntary case plan, and the family was forced to leave the shelter where they had been livi ng and had no other place to go. {¶4} On September 21, 2018, CSB filed co mplaints, alleging that thes e children were neglected and dependent. The ch ildren were removed from Mother ’s custody and placed in the emergency temporary custody of CSB. On October 31, 2018, CSB a greed to dismiss the allegations of neglect from the complaint, i ncluding three specific paragra phs of factual allegations, and the children were adjudicated depende nt by agreement of the parties . They were later placed in the temporary custody of CSB and the trial court adopted the case p lan. {¶5} The case plan required Mother and Father to secure and maintain safe and stable housing, engage in parenting classes, and obtain mental health assessments and follow any

treatment recommendations. The case plan also addressed some s pecial needs of the children. For example, all three children had mental health and behavioral is sues and the youngest two had speech delays. The children needed cons istent, ongoing treatment to a ddress those problems. The youngest child had severe speech delays and required immediate and consistent speech therapy and

other intervention services at t hat time and for the foreseeabl e future. {¶6} While the children had been in Mother’s custody, she had not be en consistent in getting them to their necessary counseling and speech therapy a ppointments. Consequently, Mother was required to demonstrate that she could consistently engage the children in their necessary counseling and speech therapy a nd/or intervention programs. Sh e was also required to arrange to provide the children w ith protective daycare.3

{¶7} Because Father had a history of substance abuse and perpetuatin g domestic violence, the case plan also requi red that he engage in relevan t assessments and follow any treatment recommendations. During the first six months of the case plan, however, Father admittedly did not engage in services because he thought Mother would regain custody of his child. {¶8} Because Mother made some progress on the case plan, the younges t child (Father’s child) was permitted to have extended, unsupervised visits in M other’s home during December 2018 and January 2019. Beginning in January 2019, that child w as placed with Mother for an extended visit, but he remained in the temporary custody of CSB . He remained placed with Mother for the next several months. During that time, however, Mother failed to consistently follow through with required speech therapy and other intervention ser vices. Daycare services for the child were terminated by the provider because Mother would just show up with the child rather than comply with the provider’s requirement that she schedule care f or each week on the prior Sunday.

The child was later removed from Mother’s home and placed with a foster family. {¶9} CBS filed two prior motions for p ermanent custody but dismissed them while the agency unsuccessfully pursued potential family or kinship place ments for the children. On July 27, 2020, CSB moved for permanent custody of all three children. F ollowing a hearing on the motion, the trial court terminated parental rights and placed the three children in the permanent custody of

CSB. {¶10} Mother and Father separately appealed, and their appeals were c onsolidated for review. They each raise two assignments of error that will be addressed jointly because they are closely related.

II.

MOTHER’S ASSIGNMENT OF ERROR I4

THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED THE DISCRETION OF THE COURT BY MOVING FORWARD WITH THE GRANTING OF PERMANENT CUSTODY OF THESE CHILDREN IN LIGHT OF THE COVID-19 STATE RESTRICTIONS AND THE TOLLING OF THE TIME DEADLINES BY THE OHIO SUPREME COURT.

FATHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO [CSB] AS [CSB] IMPEDED THE ABILITY OF [FATHER] TO COMPLETE THE CASE PLAN REQUIREMENTS DUE TO COVID RESTRICTIONS IMPLEMENTED BY THE AGENCY AND SERVICE PROVIDERS. {¶11} Through these assignments of e rror, the parents challenge the t rial court’s finding on the first prong of the permanent custody test. Before a juv enile court may terminate parental rights and award permanent custody of a child to a proper movin g agency, it must find clear and convincing evidence of both prongs of the permanent custody tes t: (1) that the child is abandoned; orphaned; has been in the temporary custody of the agency for a t least 12 months of a consecutive 22-month period; the child or a nother child of the same parent has been adjudicated abused, neglected, or dependent three time s; or that the child cannot b e placed with either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant of p ermanent custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re William S. , 75 Ohio St.3d 95, 98-99 (1996). Clear and convincing evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” (Interna l quotations omitted.) In re Adoption of Holcomb , 18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford , 161 Ohio St. 469 (1954), paragraph three of the syllabus. {¶12} The trial court found that the f irst prong was satisfied becaus e the children had been in the temporary custody of CSB for more than 12 months of a co nsecutive twenty-two-month period. R.C. 2151.414(B)(1)(d). Although the parents do not d ispute the court’s time calculation,5

these assigned errors raise a two-fold argument that the “12 of 22” ground was not appropriate in this case because of the global COVID-19 pandemic. First, Moth er asserts that COVID-19 tolling

orders authorized the trial cour t to provide them with more tim e to work on the case plan. Second, both parents assert that the tr ial court shoul d not have termin ated their parental rights based on the “12 of 22” ground because COVID- 19 health restrictions curtaile d the agency’s ability to provide, and their ability to engage in, r eunification services. We wil l address each argument in turn. Trial Court’s Authority to Grant More Time {¶13} At the commencement of the perma nent custody hearing on October 31, 2020, Mother’s counsel orally requested a continuance of the permanen t custody hearing because Mother’s ability to work on the case plan had been curtailed by COVID-19 restrictions. In denying Mother’s request for a continuan ce of the permanent custody hea ring, the trial court explained that this case had been pending for 25 months, that the motion for p ermanent custody had been pending for almost 120 days, and that Ohio statutory law did not author ize the trial court to delay the matter or extend temporary custody any longer. See R.C. 2151.414(A)(2) (requiring the court to hold the permanent custody hearing “not later than one hundred twenty da ys after the agency files the motion for permanent custody” except that it may extend the hearing fo r a reasonable period “for good cause shown[.]”); R.C. 2151.353(G) (“[T]he court shall not orde r an existing temporary custody order to continue beyond two year s after the date on which the complaint was filed or the child was first placed into shelter care, whichever date is earlier, rega rdless of whether any extensions have been previously ordered[.]). {¶14} On appeal, Mother does not assign error to the trial court’s fa ilure to grant a continuance of the permanent cus tody hearing or to extend tempo rary custody, so this Court need not reach that argument. See In re F.R ., 9th Dist. Lorain No. 14CA010543, 2015-Ohio-1877, ¶ 7.6

Furthermore, “[c]ontinuances shall be granted only when imperat ive to secure fair treatment for the parties” and, absent emergency or unforeseen circumstances, “[a ]ll requests for continuances must be made in writing and filed seven days before the scheduled he aring date.” Juv.R. 23; Loc.R. 5.03(B) of the Court of Common Pleas of Summit County, Juvenile Division. Mother filed no written motion for a continuance. Instead, at the commencement of the permanent custody hearing, Mother’s counsel orally requeste d a continuance of the hearing. Services Provided during the “12 of 22” Period {¶15} Next, both parents argue that t he trial court should not have t erminated their parental rights under the “12 of 22” ground because their abili ty to work toward reunification was seriously hampered by the COVID-19 pandemic. Notably, for peri ods of time during the pandemic, many of their face-to-face services and visits with their child ren were replaced by virtual Zoom or Telehealth meetings. This Court recognizes that virtual visita tions with parents’ children inherently lack the quality of face-to-face interactions and that particip ants in virtual visits may be further impeded by their access to the requisite technology and the abi lity to use it effectively. Because

communication restrictions were involuntarily placed on the par ents due to the COVID-19 pandemic, their parenting ability and desire to reunify with th eir children should not be measured solely by their use of remote technology. {¶16} Had the “12 of 22” calculation primarily involved time during w hich the parent’s visits and services were limited by the pandemic, their argumen ts would be more persuasive. The facts in this case are not disput ed, however, that the children were removed from Mother’s custody on September 21, 2018. CSB already had been providing services through a voluntary case plan

for several months. The oldest and youngest children were adju dicated dependent on October 31, 2018. The middle child was later adjudicated dependent on Nove mber 19, 2018. The children were7

placed in the temporary custody of CSB on December 31, 2018, an d the trial court adopted the case plan at that time. {¶17} According to R.C. 2151.414(B)(1)(d), the children’s time in tem porary custody began on the earlier of the trial court’s adjudication of the c hildren or 60 days after their removal from the home. For ease of discussion, this Court will use the date of November 19, 2018, because all children had been adjudicated by that date. CSB filed its motion for permanent custody on July 27, 2020, more than 20 months later. See In re C.W ., 104 Ohio St.3d 163, 2004-Ohio-6411, syllabus (the “12 of 22” must exist at the time the agency moves for per manent custody). To the extent that the parents argue about how COVID -19 restrictions affected reun ification services after the permanent custody motion was f iled, that period was not relevan t to this argument because it was

outside the relevant “12 of 22” time frame. See id

. {¶18} Because CSB did not implement any COVID-19 restrictions on visi tations or case plan services until March 2020, th e parents had more than 15 mo nths of court-ordered case plan services prior to any COVID-19 re strictions. The parents have failed to demonstrate that COVID19 restrictions prevented them from having a meaningful opportu nity to work on the case plan for more than 12 months of a consecutive 22-month period. Conseque ntly, they have failed to demonstrate that the trial court erred in basing its first pron g finding on the “12 of 22” ground.

Mother’s first and Father’s sec ond assignments of error are ove rruled.

MOTHER’S ASSIGNMENT OF ERROR II

THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY OF THESE CHILDREN TO [CSB] IN THE ABSENCE OF THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED TO SUPPORT THE LEVEL OF THE CLEAR AND CONVINCING STANDARD THAT THIS DECISION WAS IN PROMOTION OF THE CHILDREN’S BEST INTERESTS.8

FATHER’S ASSIGNMENT OF ERROR I

THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO [CSB], AS [CSB] FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN THE BEST INTEREST OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY. {¶19} The parents’ remaining assignment s of error challenge the trial court’s finding that permanent custody was in the best interest of the children. Wh en determining the children’s best interest, the trial court must consider all relevant factors, i ncluding: the interaction and interrelationships of the children, the wishes of the children, their custodial history; and their need for permanence in their lives and whether such a placement can be achieved without a grant of permanent custody. 1 R.C. 2151.414(D)(1)(a)-(e); see In re R.G. , 9th Dist. Summit Nos. 24834 and 24850, 2009-Ohio-6284, ¶ 11. {¶20} In considering whether the juven ile court’s judgment is against the manifest weight of the evidence, this Court “weighs the evidence and all reason able inferences, considers the credibility of witnesses and determines whether in resolving co nflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest misca rriage of justice that the [judgment] must be reversed and a new [hear ing] ordered.” (Internal quotat ions and citations omitted.) Eastley

v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Court “must always be mindful of the pr esumption in favor of the find er of fact.” Id . at ¶ 21. {¶21} The parents did not consistently interact with their children d uring this case. Prior to the implementation of COVID-19 health restrictions, they wer e permitted to have weekly, supervised visits with their children. Father did not particip ate in in-person visits initially, but Mother did. Because Mother had been engaging in case plan serv ices and her visits were going

1 Although the trial court is also required to consider whether any of the factors set forth in R.C. 2151.414(E)(7)-(11) apply, none of those factors are relev ant in this case.9

well, the trial court decided to allow Mother to have extended visits with the youngest child. Beginning in January 2019, that child was returned to Mother’s home for an extended visit. Mother was required to enroll the child in a specific preschool and en sure that he consistently attended his speech therapy appointments. {¶22} During the child’s extended vis it, Mother failed to demonstrate that she could meet the special needs of that one child. The child missed numerous speech therapy appointments and Mother did not enroll him in the preschool. The preschool reac hed out to Mother to follow up on enrolling the child, but Mother di d not complete the registrati on process. {¶23} Mother also failed to maintain protective daycare for the child . Mother initially had a licensed daycare provider for the child, who tried to acc ommodate Mother and other parents

with variable work schedules. T he provider explained, however, that state law limits her to caring for six children at a time and there is high demand for her ser vices. Consequently, the daycare provider required that parents apprise her of their daycare nee ds each Sunday so she could plan her schedule for the following wee k. Mother did not schedule weekl y as required and did not respond to the provider’s follow-up calls or texts. The daycare provid er ultimately terminated services because Mother continually s howed up with the child without sch eduling in advance. {¶24} Upon CSB’s motion and the recommendation of the guardian ad lit em, the youngest child was removed from Mother’s home in July 2019. There were also concerns at that time that Mother was allowing an adult ma le to be in the home without the approval of CSB or the trial court. {¶25} The parents had at least seven more months after July 2019 to w ork on reunification

before COVID-19 restrictions began. During that period, howeve r, the parents missed many visits with the children and did not consistently engage in reunificat ion services. Father testified at the10

hearing, but the only reason he offered for not working toward reunification with his child was that he thought Mother would regain custody. {¶26} On appeal, Mother faults the agency for failing to provide her with sufficient help,

but the record reveals otherwise. CSB connected Mother with nu merous service providers and arranged to have her children tra nsported closer to Mother for visits. Mother’s attendance at visits and with service providers was n ever consistent. The guardian ad litem and one service provider also came to Mother’s home repe atedly, but Mother was rarely th ere for their scheduled visits. {¶27} At the hearing, Mother attempted to justify her repeated no-sho ws by explaining

that she often had to work overtime and could not miss work. W hen asked how she would address the mandatory overtime problem if her children lived with her, she explained that she would find another job with better hours. M other had made no effort to fi nd a new job, however, nor had she investigated childcare for the children. Mother admitted that she had no family support to help her

with her children. {¶28} When questioned on the subject, Mother testified that she would not be willing to continue working with CSB if the children were returned to her home. She explained that she did

not need services and had been able to raise her children witho ut assistance before this case began. Mother now has a home and expressed her belief that the only re ason her children were removed from her custody was because s he was homeless at that time. {¶29} Next, the guardian ad litem tes tified about the wishes of the c hildren. The youngest two children wanted to be able to visit Mother, but they were c omfortable in their current placement.

The oldest child wanted to return to Mother’s home. If he coul d not do that, he wanted to stay in

his current foster home.11

{¶30} The guardian ad litem opined that permanent custody was in the best interest of all three children. They were all in need of stability and consist ent participation in their required counseling and/or speech therapy. The oldest child had serious mental health and behavioral problems and needed consistent counseling and me dication manage ment. The youngest child still had a significant speech delay and would need ongoing speech th erapy for the foreseeable future. Mother had failed to demonstrate a willingness or ability to en sure that the children would consistently continue with those services. {¶31} Finally, the trial court considered the children’s custodial hi story and their need for permanence. These children had been living in agency custody for more than two ye ars by the time of the hearing. CSB had been unable to find any suitable frien ds or relatives who were willing or able to provide the children with a safe and stable home. Neit her parent was able to provide such a placement at that time. With only one child in her home, Mot her had failed to get the child to his required appointments. Through he r testimony, Mother had also demonstrated a lack of insight into her family’s needs for outside services. {¶32} Father argues that the trial court based its best interest dete rmination solely on his low IQ, which it was not permitted to do. See In re D.A ., 113 Ohio St.3d 88, 2007-Ohio-1105, syllabus. According to the written judgment entry, although th e trial court considered Father’s low level of cognitive functioning, that was not the sole focus of its best interest analysis. “‘[A]lthough the trial court may not terminat e parental rights solely based upon limited cognitive abilities, it is a factor that may be considered.’” In re N.L ., 9th Dist. Summit No. 27784, 2015-Ohio-4165, ¶ 21, quoting In re Cunningham Children , 3d Dist. Seneca Nos. 13-08-27, 13-08-28, 13-08-29, and 13- 08-30, 2008-Ohio-5938, ¶ 13.12

{¶33} The evidence further demonstrated that Father lacked safe housi ng for the child. Father asserts that CSB never came to evaluate his home, but he admitted that he was in the process of gutting his home. The house had mold, no walls or ceilings, and exposed wires. This was not a suitable home for his then four-year-old child. Moreover, the evidence demonstrated that there was no strong bond between Father and his child. {¶34} The trial court reasonably concl uded that permanent custody wou ld provide these children with a safe and secure permanent placement. The paren ts have failed to demonstrate on appeal that the trial court lost its way in concluding that per manent custody was in the best interest

of the children. Mother’s sec ond and Father’s first assignment s of error are overruled.

III. {¶35} The parents’ assignments of error are overruled. The judgment of the Wayne County Court of Common Pleas, J uvenile Division, is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Wayne, State of Ohio, to carry this judgment i nto execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to13

mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellants.

THOMAS A. TE ODOSIO FOR THE COURT

CARR, P. J. SUTTON, J. CONCUR.

APPEARANCES: RENEE JACKWOOD, Attorney at Law, for Appellant. NIKKI LEIGH REED, Attorney at Law, for Appellant. DANIEL R. LUTZ, Prosecuting Attorney, and ANDREA D. UHLER, Assi stant Prosecuting Attorney, for Appellee.