[Cite as In re K.H. , 2020-Ohio-776.]

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

IN RE: K.H. C.A. No. 29555

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN-17-04-0262

DECISION AND JOURNAL ENTRY Dated: March 4, 2020

CARR, Presiding Judge. {¶1} Appellant, C.C. (“Mother”), appeals from a judgment of the Summ it County Court of Common Pleas, Juvenile Division, that terminated her p arental rights and placed her minor child in the permanent cu stody of Summit County Children Services Board (“CSB”). This

Court affirms.

I. {¶2} Mother is the biological mother of K.H., born April 14, 2017. The child’s father did not participate in the trial court proceedings and did not appeal from the judgment. {¶3} On April 17, 2017, CSB filed a complaint to allege that K.H. wa s a dependent child because Mother’s three older children had been placed in the legal custody of other adults and she continued to suffer from the same parenting problems. CSB’s greatest concern was the instability in Mother’s life and her tendency to rely on abusiv e men and other adults who take advantage of her and put her children in harm’s way. One of Mo ther’s older children was2

removed because Mother failed to p rotect the child from severe physical abuse in the home. K.H. was later adjudicated a de pendent child and placed in the temporary custody of CSB. {¶4} During this case, Mother engaged in counseling to help her deve lop insight and set boundaries to protect herself and her children from inappro priate adults. She also worked on improving her problem-solving skills. Although Mother complied with many of the requirements of the case plan for more than one year, she faile d to demonstrate the ability to implement much of what she had le arned. Mother continued to ne ed the assistance of service providers to redirect her behavior and help her care for K.H. d uring visits. Mother also

continued her unhea lthy relationship w ith an abusive man. {¶5} On March 26, 2019, CSB moved for permanent custody of K.H. Mot her alternatively moved for legal custody of the child, as did a no nrelative who has legal custody of one of the K.H.’s older half-siblings. Following a hearing on the competing dispositional motions, the trial court found th at K.H. had been in the tempor ary custody of CSB for at least 12

months of a consecutive 22-month period and that permanent cust ody was in the child’s best interest. Mother appeals and rai ses two assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN GRANTING PERMANENT CUSTODY UNDER R.C. 2151.414(B)(1)(D) WHEN [CSB] HAD NOT HAD AGENCY INVOLVEMENT WITH K.H. FOR AT LEAST TWENTY-TWO CONSECUTIVE MONTHS. {¶6} Through her first assignment of error, Mother challenges the tr ial court’s finding that the “12 of 22” prong of the permanent custody test was sat isfied under R.C. 2151.414(B)(1)(d). R.C. 2151.414(B)(1)(d) provides that an age ncy establishes the first prong of the permanent custody test if it proves that “[t]he child has b een in the temporary custody of one3

or more public children services agencies * * * for twelve or m ore months of a consecutive twenty-two-month period[.]” {¶7} Mother makes a legal argument, that this Court has previously r ejected, that the “12 of 22” provision is satisfied only if the child has been in temporary custody of a children services agency for at least 12 months of a consecutive 22-mont h period of agency involvement. This Court explicitly rejected this legal interpretation of the language of R.C. 2151.414(B)(1)(d)

in In re J.C ., 9th Dist. Summit No. 28865, 2018-Ohio-2555, ¶ 10-13. This l egal issue is also currently pending before the Ohi o Supreme Court on a certified conflict in In re N.M.P ., Supreme Court Case No. 2018-1842. {¶8} Even if this Court were to accept Mother’s interpretation of R. C. 2151.414(B)(1)(d), she has failed to demonstrate any potential error under the undisputed facts of this case. At the time CSB moved for permanent custody, K.H . had been in its temporary custody for 21 months and the agency had been involved with the family for 23 consecutive months since it filed the complaint and assumed emergency tempo rary custody of the child.

Because Mother cannot demonstrat e reversible error in the trial court’s “12 of 22” finding, her first assignment of error is overruled.

ASSIGNMENT OF ERROR II

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN PLACING K.H. IN THE PERMANENT CUSTODY OF CSB AS THE DECISION WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. {¶9} Mother’s second assignment of erro r is that the trial court’s d ecision was against the manifest weight of the evidence. In considering whether th e juvenile court's judgment is against the manifest weight of t he evidence, this Court “weighs the evidence and all reasonable4

inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and cre ated such a manifest miscarriage of justice that the [judgment] must be reversed and a new [hearing ] ordered.” (Internal quotations and citations omitted.) Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. When weighing the evidence, this Cour t “must always be mindful of th e presumption in favor of the

finder of fact.” Id . at ¶ 21. {¶10} Before a juvenile court may termin ate parental rights and award permanent custody of a child to a proper moving agency it must find clear and convincing evidence of both prongs of the permanent custody test: (1) that the child is aba ndoned; orphaned; has been in the temporary custody of the agency for at least 12 months of a con secutive 22-month period; the child or another child in a pare nt’s custody has been adjudicat ed abused, neglected, or dependent on three separate occasions; or the child cannot be placed with either parent within a reasonable time or should not be placed with either parent, based on an an alysis under R.C. 2151.414(E); and (2) that the grant of permane nt custody to the agency is in the best interest of the child, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1) and 2151.414(B)(2); see also

In re William S. , 75 Ohio St.3d 95, 99 (1996). {¶11} The trial court found that the first prong of the permanent cu stody test was satisfied because K.H. had been in the temporary custody of CSB for at least 12 months of a consecutive 22-month period. See R.C. 2151.414(B)(1)(d). As explained in this Court’s disposition of Mother’s first assignment of error, that finding was fully supported by the

evidence in the record. {¶12} Next, the trial court found that permanent custody was in the b est interest of K.H. Mother’s best interest argument focuses primarily on evidence t hat she had made progress on the5

reunification goals of the case plan. Although a parent’s case plan compliance may be relevant to the child’s best interest, it is not dispositive. In re G.L.S ., 9th Dist. Summit No. 28874, 2018- Ohio-1606, ¶ 20, citing In re G.A ., 9th Dist. Summit Nos. 28664, 28665, 2017-Ohio-8561, ¶ 13. {¶13} Moreover, although Mother had made some progress on the case pl an goals, several witnesses expr essed concern that Mother could not provi de an appropriate home for K.H. Mother had a history of relying on violent men and allowing the m to control her life and put her children at risk. Despite engaging in counseling to develop in sight into how these relationship patterns affected the safety of herself and her children, Mothe r continued her romantic relationship with the alleged father of K.H., whom she admitted was a drug abuser who was also physically violent with her. Mor eover, K.H.’s alleged father h ad never established paternity of K.H. and refused to cooperate wit h CSB or have any involvement in this case. {¶14} When determining the child’s best interest under R.C. 2151.414( D), the juvenile

court must consider all relevant factors, including the interac tion and interrelationships of the child, the child’s wishes, the c ustodial history of the child, the need for permanence in the child’s life, and whether any of the factors set forth in R.C. 2151.414 (E)(7) to (11) apply to the facts of the case. R.C. 2151.414(D)(1); In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-Ohio6284, ¶ 11. None of the factors in R.C. 2151.414(E)(7) to (11) apply to the facts of the case. {¶15} Mother’s interaction with K.H . was initially limited to supervi sed visits. Mother’s visits briefly expanded to unsupervised visits in her home, but the visits were later relocated and supervised by CSB due to concer ns that Mother was not appropria tely feeding or caring for K.H. K.H. has a swallowing disorder th at requires her to eat thicken ed foods and she also exhibits several developmental delays. A lthough Mother attended most of K.H.’s medical appointments, she did not demonstrate the ability to properly feed the child or to address her other special6

needs. The caseworker testified that she had to repeatedly red irect Mother’s behavior during supervised visits. {¶16} Because K.H. was only two years old at the time of the hearing, the guardian ad litem spoke on her beha lf. She opined that permanent custody w as in the child’s best interest because Mother continued to lack insight into her problems as a parent and had never accepted responsibility for the removal of K.H. from her custody. The g uardian also expressed concern

that Mother had not been honest about her continuing relationsh ip with the allege d father of K.H. {¶17} K.H. has spent her entire life outside of Mother’s custody. Sh e was released from the hospital after her birth and placed in the emergency tempor ary custody of CSB and then its temporary custody. She remained in the agency’s custody throug hout this case and has resided

with two different foster families. {¶18} Because K.H. had spent her entire two-year life living in tempo rary placements, she needed a legally secure permanent placement. Mother was no t prepared to provide her with

a stable home and CSB had been unable to find any suitable rela tives who were willing and able to do so. Although the legal custodians of one of Mother’s ol der children filed a motion for legal custody near the end of this case, they had not establish ed a relationship with K.H. but had met her only a few times. {¶19} Mother has failed to demonstrate that the trial court lost its way in concluding that permanent custody was in the best interest of K.H. Mother’s se cond assignment of error is

overruled.

III. {¶20} Mother’s assignments of error are overruled. The judgment of t he Summit County Court of Common Pleas, J uvenile Division, is affirmed.7

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 Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.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 to mail a notice of entry of this judgment to the pa rties and to make a notation of the mailing in the docket , pursuant to App.R. 30. Costs taxed to Appellant.

DONNA J. CARR FOR THE COURT

HENSAL, J. SCHAFER, J. CONCUR.

APPEARANCES: SHUBHRA N. AGARWAL, Attorney at Law, for Appellant. SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE CORGA N, Assistant Prosecuting Attorney, for Appellee. CHRISTINA BOLLMAN, Guardian ad Litem.