[Cite as In re H.L.R. , 2021-Ohio-229.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: H.L.R. : : : : : : : : : : Appellate Case No. 28894

Trial Court Case No. 2018-2284(Appeal from Common Pleas CourtJuvenile Division)

. . . . . . . . . . . O P I N I O N Rendered on the 29th day of January, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Appellee, Montgomery County Children Services ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, B eavercreek, Ohio 45434 Attorney for Appellant, Mother

. . . . . . . . . . . . .

TUCKER, P.J.-2- {¶ 1} Mother appeals from a judgment of the Montgomery County Court of Common Pleas, Juvenile Division, which terminated her parental rights and awarded Montgomery County Children Services (“MCCS”) permanent custody of her child, H.L.R. Mother contends the juvenile court erred by finding that an awa rd of permanent custody

was in the child’s best interest. {¶ 2} Because a review of the record shows clear and convincing evide nce that H.L.R. had been in the temporary custody of MCCS for 12 or more months out of a consecutive 22-month period and that an award of permanent cust ody to MCCS was in her best interest, we affirm.

I. Facts and Procedural Background {¶ 3} H.L.R. was born in May 2011. She was born with hydrocephalus, a condition in which excess fluid accumulates in the brain. As a result, H .L.R. has a shunt, or drainage tube, which permits drainage of excess fluids from her brain to other areas of the body where the fluid can be absorbed. {¶ 4} In early 2018, MCCS learned that H.L.R. was missing an excessiv e amount of school. In April 2018, MCCS scheduled a family conference i n order to address the issue. Mother failed to attend the meeting. 1 In May 2018, MCCS filed a complaint alleging H.L.R. to be a neglected and dependent child. Tempora ry custody was awarded to MCCS, and H.L.R. was placed in foster care. A case plan was implemented; it required Mother to obtain employment and housing, attend visita tions with H.L.R., engage in mental health treatment including anger management, and subm it to drug screens as

1 MCCS was unable to ascertain the identity of H.L.R.’s father.-3- requested. {¶ 5} Once she was in foster care, it was determined H.L.R. had signi ficant medical and dental problems that Mother had not addressed. Specificall y, H.L.R . had been referred to a neurologist regarding recurrent headaches, but Mo ther had failed to take her to the appointment. 2 Mother also did not take H.L.R. to some of her regularly-sche duled yearly neurological examination appointments. Further, vision issues can arise as a result of hydrocephalus, yet Mother never took H.L.R. for a vis ion examination. {¶ 6} It was also discovered that H.L.R. suffered from labial adhesio ns and eczema and environmental and food allergies. The record demonstrates Mother had taken H.L.R. to the emergency room at Children’s Hospital on five dif ferent occasions for problems related to the allergies, but she failed to pursue sug gested follow-up care. While in foster care, H.L.R. was prescribed an Epipen, an inhal er, and Singulair for her allergies and a steroid cream for her eczema. H.L.R. now sees a gynecologist regarding to the labial adhesions for which she was prescribed treatment. {¶ 7} The foster family also discovered that H.L.R. had significant t ooth decay; she underwent surgery for several tooth extractions and root canal procedures, and she got four crowns and four fillings. The record shows that Mother to ok H.L.R. to a dentist only one time, when she was approximately five years old. {¶ 8} On June 12, 2019, the juvenile court granted a first extension of temporary custody. A magistrate held a permanent custody hearing in Dece mber 2019, after which the magistrate filed an order terminating Mother’s parental rig hts and awarding permanent custody to MCCS. Mother filed objections, which were overruled , and the juvenile court

2 The record indicates that headaches can indicate a problem with the brain shunt.-4- adopted the magistrate’s order awarding permanent custody to MC CS. {¶ 9} Mother appeals.

II. Analysis {¶ 10} Mother asserts the following as her sole assignment of error:

THE JUVENILE COURT ERRED WHEN IT GRANTED PERMANENT CUSTODY OF THE CHILD TO [MCCS]. {¶ 11} Mother asserts that the evidence did not support the finding th at awarding permanent custody to MCCS was in H.L.R.’s best interest. Her a rgument focuses exclusively on her claim that she had met the goals of her case plan. {¶ 12} A juvenile court's decision to terminate parental rights and gr ant permanent custody to an agency of the State must be supported by clear an d convincing evidence.

In re L.C. , 2d Dist. Clark No. 2010-CA-90, 2011-Ohio-2066, ¶ 14. Clear a nd convincing evidence is evidence which will produce in the mind of the trie r of fact “a firm belief or conviction as to the allegations sought to be established.” Cross v. Ledford , 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954). The evidence must be more than a preponderance, but it need not rise to the level of certainty t hat is required beyond a

reasonable doubt in criminal cases. Id. {¶ 13} In reviewing a permanent custody decision, “we apply an abuse-o fdiscretion standard, and we will not disturb such a decision on evidentiary grounds ‘if the record contains competent, credible evidence by which the court could have formed a firm belief or conviction that the essential statutory elements for a termination of parental rights have been established.’ ” In the Matter of T.S., 2017-Ohio-482, 85 N.E.3d 225, ¶ 6-5- (2d Dist.), citing In re L.C. at ¶ 14. The phrase “abuse of discretion” implies a decision which is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). {¶ 14} R.C. 2151.414(B)(1) establishes the following two-part test for courts to apply when determining a motion for permanent custody to a publ ic children services

agency: Except as provided in division (B)(2) of this section, the cour t may grant permanent custody of a child to a movant if the court determine s at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for pe rmanent custody and that any of the following apply: (a) The child is not abandoned or orphaned, has not been in the temporary custody of one or more public children services agencies or pri vate child placing agencies for twelve or more months of a consecutive twe nty-twomonth period, or has not been in the temporary custody of one o r more public children services agencies or private child placing agen cies for twelve or more months of a consecutive twenty-two-month period if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, 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 pare nts. (b) The child is abandoned.-6- (c) The child is orphaned, and there are no relatives of the ch ild who are able to take permanent custody. (d) The child has been in the temporary custody of one or more public children services agencies or private child placing agencies fo r twelve or more months of a consecutive twenty-two-month period, or the ch ild has been in the temporary custody of one or more public children se rvices agencies or private child placing agencies for twelve or more m onths of a consecutive twenty-two-month period and, as described in divisi on (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state. (e) The child or another child in the custody of the parent or parents from whose custody the child has been removed has been adjudicated a n abused, neglected, or dependent child on three separate occasio ns by any

court in this state or another state. {¶ 15} Here the juvenile court made the findings required to award MCC S permanent custody. Specifically, the court found that H.L.R. h ad been in the custody of MCCS for 12 or more months of a consecutive 22-month period and found that awarding permanent custody to MCCS was in the child's best interest. {¶ 16} We note the juvenile court found that H.L.R. could not be place d with Mother within a reasonable time or should not be placed be placed with Mother. Because the court found by clear and convincing evidence that H.L.R. had be en in the temporary custody of MCCS for 12 or more months of a consecutive 22-month period, the court improperly applied R.C. 2151.414(B)(1)(a); that section specifi es that it is not applicable-7- in cases where the child has been in the temporary custody of o ne or more public children services agencies or private child placing agencies for 12 or m ore months of a consecutive 22-month period. In other words, “[t]he plain lang uage of R.C. 2151.414(B)(1)(a) reveals that the subsection is only triggered when none of the remaining three subsections are triggered.” In re H.D. , 10th Dist. Franklin No. 13AP707, 2014-Ohio-228, ¶ 13, quoting In re Damron , 10th Dist. Franklin No. 03AP-419, 2003- Ohio-5810, ¶ 9. Nevertheless, we find any error harmless becau se the court's decision reflected it had considered R.C. 2151.414(B)(1)(a) in the alter native while also making its finding under R.C. 2151.414(B)(1)(d). {¶ 17} On appeal, Mother does not dispute the juvenile court's finding that R.H. had been in the temporary custody of MCCS for 12 or more months of a consecutive 22- month period. Instead, she argues that she had complied with h er case plan, and therefore the juvenile court’s decision regarding H.L.R.’s best interest was against the weight of the evidence. {¶ 18} Upon review, we find Mother's argument to be unpersuasive. The record supported the conclusions that Mother failed to obtain housing and also failed to attend her mental health counseling; thus, she failed to complete at l east two of the requirements set forth in her case plan. Further, even if we were to find t hat she had substantially satisfied her case plan objectives, such a finding would not be dispositive of the bestinterest determination. In re T.D. , 2d Dist. Montgomery No. 27136, 2016-Ohio-7245, ¶ 12. This court has recognized that, “[w]hen the focus is on the chi ld's best interest, a trial court conceivably could terminate parental rights even if a par ent completed all of her case-plan objectives.” (Citation omitted.) Id.-8- {¶ 19} Regarding H.L.R.’s interaction with significant others, the rec ord

demonstrated that she was bonded to Mother and that visits betw een the two generally went well. However, H.L.R. was also bonded to her foster famil y, which included one of her biological siblings. While H.L.R. had expressed a desire t o live with Mother, she had also expressed that she was happy and comfortable with her fost er family. {¶ 20} Regarding H.L.R.’s custodial his tory and her need for a legally secure placement, we note that the child had been with her foster fami ly since July 2018. Further, MCCS had been involved with the family since 2017, whe n H.L.R.’s younger sibling was discovered to be suffering from medical neglect. M other failed to complete her case plan concerning the sibling, and her parental rights w ere ultimately terminated. Two other siblings lived with their paternal grandmother rather than with Mother. {¶ 21} While Mother had completed parts of her case plan, she had fail ed to secure adequate housing. Further, she quit therapy and indicated she did not believe there was any reason to continue such therapy. The record also demonstra ted an ongoing issue with Mother’s anger, which had been directed to the foster pare nts and MCCS

caseworkers. {¶ 22} Further, Mother was unwavering in her insistence she had never neglected H.L.R. But the record unequivocally established she failed to attend to H.L.R.’s medical

needs and that she allowed H.L.R. to miss an excessive amount o f school. {¶ 23} The record showed that the foster family had been attentive to H.L.R.’s needs. After she was placed in foster care, she began to regula rly attend school but was significantly behind her peers. The foster parents worked with the teachers, and H.L.R. was placed on an I.E.P. and began to receive specialized servic es at school. She had-9- improved significantly since her foster placement. And, as pre viously stated, her medical needs were being met by the foster family. Finally, the foster family wished to adopt

H.L.R. {¶ 24} As noted, R.C. 2151.414(E)(11) also applied in this case, as Mo ther had had her parental rights terminated with regard to H.L.R.’s youn ger sibling and had failed to present evidence that, notwithstanding the termination, she was capable of providing a legally secure placement for H.L.R. Indeed, there was eviden ce that during visitations, Mother instructed H.L.R. not to comply with the treatment for h er labial adhesions. Mother also continued to give the child chewing gum, despite be ing instructed not to do so in light of H.L.R.’ s dental issues. {¶ 25} On this record, the juvenile court did not err in terminating M other’s parental rights and awarding permanent custody to MCCS; there was clear and convincing evidence that H.L.R. had been in the temporary custody of MCCS for more than 12 months of a 22-month period and that an award of permanent cust ody was in the child’s

best interest. {¶ 26} The sole assignment of error is overruled.

III. Conclusion {¶ 27} Mother’s assignment of error being overruled, the judgment of t he juvenile

court is affirmed.

. . . . . . . . . . . . . HALL, J. and WELBAUM, J., concur.-10-

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Robert Alan Brenner Sara Barry Hon. Helen Wallace