[Cite as In re S. Children , 2020-Ohio-3791.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: S. CHILDREN :

:

: APPEAL NOS. C-200168 C-200169 TRIAL NO. F10-272X
O P I N I O N.

Appeals From: Hamilton County Juvenile Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: July 22, 2020

Phyllis Schiff , for Appellant Mother,
Anzelmo Law and James A. Anzelmo , for Appellant Father, Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Erica C. Bowen
, Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and Family Services, Raymond T. Faller , Hamilton County Public Defender, and Belinda S. Gullette
, Assistant Public Defender, for Appellee Guardian ad Litem.OHIO FIRST DISTRICT COURT OF APPEALS

2 M YERS , Presiding Judge. 

### {¶1} Mother and father appe al the trial court’s en try granting permanent custody of their children to the Hamilton County Department of Job and Family Services (“HCJFS”). Because the trial co urt’s finding that the children cannot or should not be placed with either parent within a reasonable ti me was not supported by sufficient evidence, we reverse its grant of permanent custody.

Factual and Procedural Background



### {¶2} Mother and father are the parents of J.J.S. and J.K.S. In June 2018, HCJFS was granted interim custody of the chil dren after it filed a motion for custody and an affidavit alleging that mother, who previously had her parental rights terminated with respect to a sibling of J. J.S. and J.K.S., was recently charged with two counts of operating a vehicle while under the influence of drugs (“OVI”). Because the children were in the vehicle at the time of the second OVI offense, mother was also charged with child endangerment. The affidavit further alleged that mother reported that father was physically abusive. It detailed incidents that mother had described involving abuse by father, including an episode in which father threw a flaming lighter at her, and a separate incident in which father struck her with a vehicle when she attempted to stop him from leaving with J.K.S. 

### {¶3} Along with the motion for custod y, HCJFS filed a motion for a determination that, because mo ther previously had her pa rental rights terminated with respect to a sibling of J.J.S. and J.K. S., it was not required to make reasonable efforts to prevent the contin ued removal of the children from mother’s home or to
return the children to moth er. The magistrate issued an order granting interimOHIO FIRST DISTRICT COURT OF APPEALS

3 custody of the children to HCJFS and gran ting HCJFS’s motion for a determination that reasonable efforts are not required. 

### {¶4} HCJFS filed a case plan for the family. The case plan indicated that the children were placed with their paternal grandmother. It noted that both mother and father needed to gain insight into appropriate pare nting practices, gain an understanding about the dang ers of domestic violence, and demonstrate impulse control regarding substance abuse. The case plan required that mother sign all releases of information to begin services an d participate in all se rvices. With respect to father, the case plan required that he si gn a release of informat ion, participate in a
mental-health assessment and en gage in individual or family therapy, participate in drug treatment, and comply with random urine screens. 

### {¶5} J.J.S. and J.K.S. were adjudicated abused, neglected, and dependent. In May 2019, HCJFS filed a motion to modify temporary custody to permanent custody, contending that the children canno t or should not be placed with either parent within a reasonable time and that a grant of pe rmanent custody was in the
children’s best interest. The children’s guardians ad litem filed a joint motion advocating for a grant of permanent custody. 

### {¶6} At a hearing on the motion for permanent custody, Alyssa Royer, the HCJFS caseworker for the family, testified th at HCJFS became involved in this case after mother was charged with OVI when the children were in the car with her. She stated that, at the time of her testimony, mother was incarcerated in a Butler County jail for the OVI offense. Royer testified regarding mother’s and father’s compliance with the case plan. She explained th at mother had comp leted a diagnostic assessment, which recommended both that mother engage in random drug screens
and that mother’s behavior be monitore d to see if additional substance-abuse treatment was needed. Royer testified that mother tested positive for cocaine in February 2019, but explained that despite th e positive test, mother continued to denyOHIO FIRST DISTRICT COURT OF APPEALS

4 that she had a substance-abuse problem. Royer acknowledged that mother had signed a release of information at Sunrise Treatment Center, but Royer had been
unable to make contact with mother’s therapist to determine if mother had completed therapy. 

### {¶7} Father also completed a diagnostic assessment, which recommended that he engage in random drug screens and complete a YWCA assessment due to concerns with domestic violence. Father complied with all requested drug screens, and all screens were negative for drug use. He also completed the YWCA assessment, which recommended that he complete the Transform Program for domestic violence. Royer testified that fath er initially participated in the program, but that he stopped attend ing because his work schedule interfered with his participation. Royer was concerned that father had not addressed HCJFS’s concerns
with domestic violence. She was troubl ed by this, because despite mother and father’s assertion that they were not cu rrently in a relationship, she had seen mother’s car at father’s home during pop-up visits. 

### {¶8} Royer testified that father was curre ntly granted supervised visitation with the children, although for a period of time he had been allowed unsupervised visits. Father told Royer that it was difficu lt for him to attend visitation consistently because of his work schedule. Royer testif ied that mother had informed her, via a text message sent several months before th e permanent-custody trial, that she would not be attending visitation any longer, that she did not want to work with HCJFS, and that she wanted the children to be placed in their father’s cu stody. Royer further stated that mother previously had another child permanently removed from her care. 

### {¶9} Royer testified that the children were currently living with their paternal grandmother and their aunt. The placement was very stable, and the children’s relative caregivers loved them and wished to adopt. She opined that a grant of permanent custody was in the children’s best interest.OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶10} Father testified that there was no history of domestic violence in his relationship with mother. He acknowledged that mother had previously obtained a protection order against him, but he expl ained that she had done so over threats
about their house and that no domestic violence had been involved in the incident leading to the protection order. Father te stified that he had attended a few of the Transform Program classes, but had been un able to complete the program because of his work schedule. He has an appointment scheduled to begin the program anew, and he explained that attendance would no longer be an issue because his work schedule had changed. Father conceded that he had missed his first scheduled appointment to restart the prog ram due to car troubles. 

### {¶11} Father currently visits his children once a week for a two-hour period, and the visits go well. Alth ough he and mother are not in a relationship, he speaks with her approximately twice a week. Father testified that if he were granted custody of the children, he would use his mother and sister (the children’s current caregivers)
for child care. Father testified that he works in construction, and that he makes enough money to support his children. 

### {¶12} Mother testified remotely from the Butler County jail, where she was
incarcerated for an OVI offense. She testif ied that prior to her incarceration, she had received substance-abuse treatment consistently since December 2015. She explained that she took suboxone as part of her substance-abuse treatment, but denied taking cocaine and disputed her positi ve drug test. Mother participated in a program in jail that worked on coping skills, relapse prevention planning, and a treatment plan to maintain he r sobriety upon her release. She told the court that she had also completed the Women Helping Wome n program, but clarified that although she had been in a previous relationship that involved domestic violence, there was no domestic violence present in he r relationship with father.OHIO FIRST DISTRICT COURT OF APPEALS

6 

### {¶13} Mother explained that she and father are no longer in a relationship, but are good friends and coparents. She acknowledged that father had obtained a protection order against her in 2016 afte r she threatened to burn father’s house down during a time when they were sepa rated. She further admitted that she had subsequently obtained a protection order against father in re taliation. Mother
testified that her visits with her children prior to her incarcerat ion had gone well. Mother denied telling Royer th at she no longer wanted to visit with her children or
work with HCJFS. 

### {¶14} The magistrate granted HCJFS’s moti on for permanent custody. Both mother and father filed objections challeng ing the sufficiency and the weight of the evidence supporting the magistrate’s decision. The trial court overruled the objections. It found that the children cannot or should not be placed with either parent within a reasonable time and that a grant of permanent custody was in the children’s best interest. The trial court accepted and approved the magistrate’s decision and entered judgment granting permanent custody of J.J.S. and J.K.S. to
HCJFS. 

### {¶15} Both mother and father now appeal. In two assignments of error, father argues that the trial court failed to consider all statutory factors pertaining to
the children’s best interest and that the trial court’s gr ant of permanent custody was not supported by clear and convincing evidence. In a single assignment of error, mother argues that the trial court erred as a matter of law by granting HCJFS’s motion for permanent custody.OHIO FIRST DISTRICT COURT OF APPEALS

7 Permanent Custody



### {¶16} We consider mother’s sole assignment of error and father’s second assignment of error together, as both assi gnments of error challenge the sufficiency and weight of the evidence su pporting the trial court’s gran t of permanent custody. 

### {¶17} Before granting a motion for perm anent custody, a trial court must find that a grant of permanent custody is in the children’s best interest, and that one
of the conditions in R.C. 2151.414(B)(1) applies. In re H.R.H ., 1st Dist. Hamilton No. C-200071, 2020-Ohio-3160, ¶ 16. 

### {¶18} The trial court’s grant of permanen t custody must be supported by clear and convincing evidence. Id. at ¶ 15. Clear and convincing evidence “is evidence sufficient to ‘produce in the mind of the trier of fact[ ] a firm belief or
conviction as to the facts so ught to be established.’ ” In re W.W. , 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46, quoting In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42. An examination into the sufficiency of the evidence requires this court to determine whether the juvenile
court had sufficient evidence before it to satisfy the clear-and-convincing standard.
In re R.M.S ., 1st Dist. Hamilton Nos. C-190378, C-190386 and C-190405, 2019- Ohio-4281, ¶ 27. When reviewing a challenge to the manifest weight of the evidence,
we must review the record to determine whether the trial court lost its way and committed such a manifest miscarriage of justice that its judgment must be reversed.
Id

. 

### {¶19} Here, the trial court found that, purs uant to R.C. 2151.414(B)(1)(a), the children cannot or should not be placed with either parent within a reasonable time and that a grant of permanent custody was in the children’s best interest. R.C. 2151.414(E) sets forth vari ous factors for the trial court to consider when determining whether a child cannot or should not be placed with either parent withinOHIO FIRST DISTRICT COURT OF APPEALS

8 a reasonable time. With re spect to mother, the trial co urt found that, pursuant to R.C. 2151.414(E)(1), mother fa iled to remedy the problems that led to the children’s removal from the home. In support of this finding, the trial court noted that mother was currently incarcerated for two OVI convictions; that both children had been adjudicated dependent more than once du e, in part, to mother’s substance-use issues; that mother was in denial about her substance-use issues; and that mother had completed services to address the domest ic-violence concerns in her relationship with father, but continued to deny the presence of domestic violence in the relationship. The trial court additionally found, under R.C. 2151.414(E)(11), that mother’s parental rights were involuntaril y terminated with respect to a sibling of
J.J.S. and J.K.S. 

### {¶20} With respect to father, the trial co urt found that, pursuant to R.C. 2151.414(E)(1), father had fail ed to remedy the problems that led to the children’s removal from the home. In support of this finding, the trial court noted that father had not completed services to address domestic violence. 

### {¶21} The trial court’s findings with resp ect to mother were supported by clear and convincing evidence. The record supported the trial court’s finding that mother previously had her parental rights involuntarily terminated with respect to a sibling of J.J.S. and J.K.S. The record also supported the finding that mother had failed to remedy the problems that led to the children’s removal. The children were placed in the care of HCJFS after mother was charged with an OVI while the children were present in the vehicle. And mother tested positive for cocaine during the pendency of this action, but continued to deny any issues with substance abuse. 

### {¶22} With respect to father, however, we cannot find that clear and convincing evidence supported the trial court’s conclusion that father failed to remedy the problems that led to the children ’s removal from the home. Father’s case plan required him to engage in a mental -health assessment, participate in drugOHIO FIRST DISTRICT COURT OF APPEALS

9 treatment, and comply with random urine screens. Royer test ified that father complied with all drug screens, and all were negative for drug use. Father also completed a diagnostic assessment, and then subsequently completed the
recommended YWCA assessment to address domestic-violence concerns. This YWCA assessment recommended that father participate in the Transform Program for domestic violence. Father attended several classes in this program, but stopped attending due to a conflict with his work sche dule. The record indicates that father is scheduled to restart the program and that his work conflict has been eliminated. 

### {¶23} As the record indicates that father has complied with all recommended services with the exception of completing the Transform Program, which he attended in part and is scheduled to restart, the tr ial court’s finding that father failed to remedy the problems that led to the ch ildren’s removal from the home was not supported by clear and convincing evidence. The trial court made no other findings with respect to father in support of its determination that the children cannot or should be placed with either pare nt within a reasonable time. 

### {¶24} R.C. 2151.414(E) provides that the court shall enter a finding that the children cannot or should not be placed with either parent if it determines that one
or more the factors set forth in that section “exist as to each of the child’s parents.” (Emphasis added.) As we have determined that the trial court’s entry does not establish the presence of any of the factors with respect to father , we hold that the trial court’s finding that th e children cannot or should not be placed with either parent within a reasonable time was not supported by sufficient evidence and that, consequently, the trial court erred in granti ng permanent custody of J.J.S. and J.K.S.
to HCJFS. 

### {¶25} Mother’s assignment of error and father’s second assignment of error are sustained. Father’s first assignment of error in which he argues that the trial
court failed to consider all relevant best-inter est factors is rendered moot.OHIO FIRST DISTRICT COURT OF APPEALS

10 Conclusion



### {¶26} Because the trial court’s finding that J.J.S. and J.K.S. cannot or should not be placed with either parent within a reasonable time was not supported by sufficient evidence, the trial court erred in granting permanent custody of the
children to HCJFS. We reverse the tria l court’s grant of pe rmanent custody and remand this cause for further proceedings co nsistent with the la w and this opinion. Judgment reversed and cause remanded.

B ERGERON and W INKLER , JJ., concur

.

Please note: The court has recorded its own entry on the date of the release of this opinion.