[Cite as In re C.S. , 2019-Ohio-5109.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY

IN THE MATTER OF: : Case No. 19CA899

C.S. : H.S. : ADJUDICATED ABUSED, NEGLECTED DECISION AND AND DEPENDENT CHILDREN. : JUDGMENT ENTRY

RELEASED 11/20/2019 APPEARANCES: Matthew F. Loesch, Portsmouth, Ohio for appellant. Elisabeth M. Howard, Waverly, Ohio, for appellee.

Hess, J. {¶1} After the Pike County Juvenile Court granted permanent custody of her two children to the Pike County Children’s Services Board (“agency” ), the mother appealed. 1 The mother’s sole assignment of error is that the trial court’s determination that permanent custody was in the best interest of the children was against the manifest weight of the evidence. However, after weighing the evidence an d all reasonable inferences, considering the credibility of the witnesses after according the requisite deference to the trial court’s determinations, we conclude that in resolving evidentiary conflicts, the trial court did not clearly lose its way or crea te a manifest miscarriage of justice so that we must reverse its judgment awarding permanent custody of the children to the agency. We overrule the mother’s sole assignment of erro r and affirm the judgment

of the trial court.

1 The father never appeared for any hearings, was not part of th e case plan for reunification, and had no contact with the minor children during the pendency of the case

.Pike App. No. 19CA899 2

I. PROCEDURAL HISTORY AND FACTS {¶2} The agency became involved following a domestic violence incide nt involving the mother and her abusive boyfriend, Joshua Barnett. The agency filed a dependency action and was awarded temporary custody of C.S. and H.S. in September 2017. In October 2017, the trial court adjudicated the children abused, neglected and dependent. From September 2017 through February 2018, the moth er had two hours per week of supervised parenting time. In February 2018, the mo ther’s parenting time increased to eight hours per week of unsupervised parenting tim e on Saturdays in her home, as long as the mother’s abusive boyfriend, Barnett, was n ot living there. However, in late March the agency suspected that Barnett was living with the mother after observing bruises on the mother, learning of statements the children made at school about Barnett’s presence in the home, and observing Barnett’s personal belongin gs in the home. The agency sought to terminate unsupervised parenting time. Howeve r, the trial court declined to do so and instead ordered Barnett’s things to be re moved from the mother’s home, reduced the unsupervised parenting time from eight to fiv e hours, and moved it to Thursdays to allow the agency to perform random checks during p arenting time. {¶3} In August 2018, the trial court expanded the mother’s parenting time to every weekend from Friday afternoon to Sunday evening and prohi bited Barnett from being in the mother’s home at any time. When the mother came to pick up the children for the first weekend visit in August 2018, she tested positive for methamphetamines and amphetamines. The trial court terminated all unsupervised visit ation and returned her to two hours per week supervised visits. In September 2018, the mo ther stopped visiting thePike App. No. 19CA899 3

children and the agency could not locate her. The mother’s wher eabouts were unknown and she had no contact with the children from September 2018 un til January 2019. {¶4} The agency filed a request for permanent custody in December 20 18 and a hearing on the matter was held June 27, 2019. {¶5} Agency caseworker Christine Myers testified that C.S. and H.S. had been in the continuous custody of the agency since September 20, 201 7. The agency became involved in September 2017 because of a prolonged, two-day dome stic violence incident involving the mother’s boyfriend, Barnett. The mother and Barne tt had an ongoing relationship that dated back several years. Immediately after t he two-day domestic violence incident, the mother moved into a domestic violence sh elter but was soon evicted because she had prohibited contact with Barnett. The mother the n moved to a homeless shelter for a little over a month and then moved into an apartm ent with a man she met at the homeless shelter. However, this man assaulted her, choking her and knocking out a dental implant in mid-December, 2017. {¶6} In January 2018, the mother moved back into the home she had pr eviously shared with Barnett and the agency suspected that Barnett was a round or had access to the mother while she resided there. Though she made some progr ess during the first year of her case plan, the mother relapsed in August 2018, reco nnected with Barnett, tested positive for methamphetamines, and stopped visiting the children. The mother’s

whereabouts were unknown and she had no contact with the childr en from September 21, 2018 until January 7, 2019 -- a period of 108 days. {¶7} Myers testified that the mother entered inpatient psychological and

substance abuse treatment at Saf e Haven in Chillicothe, Ohio on January 4, 2019 andPike App. No. 19CA899 4

was still residing at Safe Haven, engaged in substance abuse co unseling at the time of the hearing. The mother did not have independent housing at th e time of the hearing. The mother was never able to secure independent, stable housing throughout the pendency of the case and had previously lived either in domesti c violence shelters, homeless shelters, or with violent boyfriends. {¶8} Myers testified that in January 2019, the mother admitted that Barnett had been present in the home during 2018, but the mother stated tha t Barnett was not present during the children’s visits. Thus, almost the entire year of 2 018, the mother had maintained her relationship with Barnett and lied to Myers and the trial court about it. Myers testified that the mother had contact again with Barnett in March 2019 while residing at Safe Haven. {¶9} Myers testified that at the time of the hearing C.S. was eight and H.S. was seven. Both children were emotionally and educationally impacte d by their exposure to domestic violence, but were in counseling and had made signific ant progress. {¶10} Julie Lundy, a caseworker with the agency, testified that she was involved with the mother in a different case in 2007 in Jackson County, during which time the mother received domestic violence services and counseling follo wing the removal of several of her other children from her custody. {¶11} Julie Johnson, the mother’s substance abuse counselor at Safe H aven, testified that she was providing the mother substance abuse and domestic violence counseling while the mother resided at Safe Haven. Johnson beli eved the mother had made progress at Safe Haven in the last few months. However, Jo hnson conceded thatPike App. No. 19CA899 5

the mother’s treatment plan target completion date was not unti l October 2019 and, as of the time of the hearing, the mother was not ready to obtain hou sing. {¶12} Kelly Padgett testified that she is the stepmother of one of th e mother’s

other children and has had close contact with the mother over t he past several years. Padgett said that C.S. and H.S. miss their other siblings and f amily members. Padgett stated that she would be a suitable family for custody placemen t for C.S. and H.S. if the trial court terminated the mother’s custody. {¶13} The children’s maternal grandmother, Maria M., testified that s he believed her daughter had broken through the domestic abuse cycle, had s ignificantly changed during her time at Safe Haven, and should be given custody of C .S. and H.S. However, Maria M. also admitted that in January 2019, she and her daught er had smoked marijuana together during one of her daughter’s day passes from Safe Have n. Maria M. also conceded that she is not fully knowledgeable about her daughter ’s relationships with men and was not aware that her daughter’s current boyfriend was on probation for a felony burglary conviction. Maria M. testified that while her daughter ’s whereabouts were unknown from September 2018 to January 2019, her daughter made no attempts to reach

out to Maria M. or her children. {¶14} The mother testified about Barnett and the domestic violence sh e had experienced. Barnett had felony warrants and was incarcerated a t the time of the hearing. The mother said that she had two failed suicide attempts during the time she was missing and with Barnett. The mother testified about the progress she h ad made through substance abuse and mental health counseling. She stated that s he had been unemployed during 2017 and 2018, but at the time of the hearing , she had been employedPike App. No. 19CA899 6

part-time at a local ice-cream shop for approximately one month . Prior to that job, she worked at a pizza restaurant but quit after about a month. {¶15} On cross-examination, the mother admitted to having a long hist ory of violent relationships. Four different boyfriends, including Bar nett, had inflicted domestic violence which occurred in her home during the period she had c ustody of all seven of

her children. The mother admitted that she had reinitiated her relationship with Barnett in July 2018 and fled with him when he failed to report to jail to serve his sentence for his domestic violence conviction involving her. However, she conten ded that she was being held against her will in the woods during the months she was mi ssing. At the time of the permanent custody hearing, Barnett was incarcerated and the mot her was involved with a fifth boyfriend who had a felony domestic violence conviction

. {¶16} The guardian ad litem submitted a report and recommended that t he agency be granted permanent custody of both children. {¶17} The trial court entered judgment granting permanent custody of the two children to the agency and terminating parental rights. The tri al court found by clear and convincing evidence that it was in the best interest of the chi ldren to grant the agency’s motion for permanent custody. The trial court found that C.S. a nd H.S. had been in the agency’s temporary custody for 12 or more of a 22-month period. The mother has seven minor children and, at the time of the permanent custody hearin g, did not have custody of any of her children. The mother admitted that she has had op en children services cases in Jackson, Franklin, and Pike counties since 2007. The trial c ourt found that both parentsPike App. No. 19CA899 7

had statutorily abandoned the children as defined in R.C. 2151. 011(C) 2 because the mother has not seen the children since September 21, 2018 and t he father has not had any contact with the children throughout the pendency of the ca se. The children have expressed a desire to see their mother, but the guardian ad lit em recommended a termination of parental rights. {¶18} The trial court found that the mother does not have suitable ho using, does not have the means to sustain housing, and continues to be invo lved in relationships with

violent men that have resulted in serious harm to her and have exposed her children to multiple acts of domestic violence. The mother’s actions throug h the case show “an unwillingness to change her behavio rs in order to provide an ad equate permanent home for the minor children.” Though the mother has made progress ad dressing her substance abuse issues, the trial court found that her “continuous short[ -]term relationships with violent abusers” was more concerning, as was her current relati onship with a man who has a felony for domestic violence. The trial court found that the children cannot and

should not be reunified with the father or mother within a reas onable time. It found that because both parents had abandoned the children, reasonable eff orts by the agency to

eliminate the continued removal of the children from the home a nd make it possible for the children to return safely home under R.C. 2151.419 were not required. {¶19} The trial court granted the agency permanent custody of the chi ldren. The mother appealed.

2 R.C. 2151.011(C) states, “For the purposes of this chapter, a child shall be presumed abandoned when the parents of the child have failed to visit or maintain conta ct with the child for more than ninety days, regardless of whether the parents resume contact with the child after that period of ninety days.”Pike App. No. 19CA899 8

II. ASSIGNMENTS OF ERROR {¶20} Mother assigns the following error for our review:

THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY OF C.S. AND H.M. [SIC] TO TH E PIKE COUNTY CHILDREN SERVICES WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

III. LAW AND ANALYSIS

A. Standard of Review {¶21} A reviewing court will not reverse a trial court’s judgment in a permanent custody case unless it is against the manifest weight of the ev idence. See In re T.J. , 4th Dist. Highland Nos. 15CA15 and 15CA16, 2016-Ohio-163, ¶ 25. “T o determine whether a permanent custody decision is against the manifest weight of the evidence, an appellate court must weigh the evidence and all reasonable inferences, co nsider the credibility of the witnesses, and determine whether in resolving evidentiary c onflicts, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment

must be reversed and a new trial ordered.” Id. at ¶ 25, citing Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. In revie wing evidence under this standard, we defer to the trial court’s determinations of matte rs of credibility, which are crucial in these cases, where demeanor and attitude are not ref lected well by the written

record. Eastley at ¶ 21; Davis v. Flickinger , 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997). {¶22} In a permanent custody case the dispositive issue on appeal is “whether the trial court’s findings * * * were supported by clear and convin cing evidence.” In re K.H. , 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; R.C. 2151.414(B)(1). “ClearPike App. No. 19CA899 9

and convincing evidence” is “that measure or degree of proof wh ich is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in c riminal cases and which will pr oduce in the mind of the trier of facts a firm belief or conviction as to the facts soug ht to be established.” Cross v.

Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of t he syllabus; State ex rel. Pietrangelo v. Avon Lake , 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419, ¶ 14. “[I]f the children services agency presented competent and credible evidence upon which the trier of fact reasonably could have formed a firm bel ief that permanent custody is warranted, then the court’s decision is not against the mani fest weight of the evidence.”

In re R.M. , 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.). {¶23} “The essential question we must resolve when reviewing a perman ent custody decision under the manifest weight of the evidence stan dard is whether the amount of competent, credible evidence presented at trial produ ced in the court’s mind a firm belief or conviction that permanent custody was warranted. ” In re T.J. at ¶ 26. B. Permanent Custody Principles and Framework {¶24} “The United States Supreme Court has stated that parents' inter est in the care, custody, and control of their children ‘is perhaps the ol dest of the fundamental liberty interests recognized by this Court.’ ” In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville , 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). “It is irrefutable that parents have fundam ental constitutional rights free from government intervention in their decisions on the cus tody and caretaking of their

children.” In re Mullen , 129 Ohio St.3d 217, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 26, cit ing

In re Hockstok , 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16. “It is alsoPike App. No. 19CA899 10

irrefutable that those rights are not absolute.” Mullen at ¶ 26; In re D.A. , 113 Ohio St.3d 88 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Instead, “ ‘it is pla in that the natural rights of a parent * * * are always subject to the ultimate welfare of th e child, which is the pole star or controlling principle to be observed.’ ” In re Cunningham , 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C. , 200 So.2d 54, 58 (Fla.App.1974). Thus, the state may terminate parental rights when the child’s best inter est requires it. D.A. at ¶ 11. {¶25} R.C. 2151.353(A)(4) permits a trial court to grant permanent cu stody of a child that is adjudicated an abused, neglected, or dependent ch ild to a children services agency if the court determines: (1) that the child cannot be pl aced with one of the child's parents within a reasonable time or should not be placed with e ither parent as provided in R.C. 2151.414(E) and (2) that the permanent commitment is in the best interest of the child as provided in R.C. 2151.414(D)(1)(a)-(e). The mother co ntests the second prong, the best interest finding. More specifically, she argues that u nder R.C. 2151.414(D)(1)(d), a legally secure placement could have been achieved with her wi thout granting permanent custody to the agency because she has maintained sobr iety for a significant period while in inpatient treatment, has gainful employment, re ceived domestic violence counseling, and has separated from Barnett, her abusive boyfrie nd. C. Trial Court’s Best Interest Finding {¶26} R.C. 2151.414(D)(1) requires the trial court “to consider ‘all relevant factors,’ including five enumerated statutory factors * * *. No one eleme nt is given greater weight or heightened significance.” In re C.F ., 113 Ohio St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816, ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006–Ohio–5513, 857 N .E.2d 532, ¶ 6. The five enumerated factors include: (1) the child's inter action and interrelationshipPike App. No. 19CA899 11

with the child's parents, siblings, relatives, foster parents a nd out-of-home providers, and any other person who may significantly affect the child; (2) th e child's wishes, as expressed directly by the child or through the child's guardian ad litem, with due regard for the child's maturity; (3) the child's custodial history; (4 ) the child's need for a legally secure permanent placement and whether that type of placement c an be achieved without a grant of permanent custody to the agency; and (5) whe ther any factors listed under R.C. 2151.414(E)(7) to (11) apply. {¶27} The mother contends that she has the ability to provide a legal ly secure permanent placement. She contends that because she has had a si gnificant period of sobriety, has had domestic violence counseling and separated fr om Barnett, and has employment, she “was on a tremendous path towards a new and bet ter life” at the time of the permanent custody hearing. The trial court acknowledged that the mother had made progress in these areas, but the court’s main concern and a key reason her children were removed from her custody in September 2017 was her involve ment with violent

men. {¶28} The record shows that the mother has been involved in no less t han five violent relationships and when she is not living with violent m en she lives in homeless or women’s shelters or inpatient drug treatment facilities. At the time of the hearing, she had lived for six months in an inpatient drug facility. She had ext ended periods of unemployment and at the time of the hearing worked as a part-ti me employee in an icecream shop. Although the mother claimed to have voluntarily and permanently separated from Barnett, he was incarcerated at the time of the hearing. A nd, despite having counseling for domestic violence, at the time of the hearing th e mother was in anotherPike App. No. 19CA899 12

relationship with a man who had a felony for domestic violence and was on probation for burglary. The mother also admitted to caseworker Myers that she had lied to the court

about her contact with Barnett and about the bruises she receiv ed from him during the

course of the case. {¶29} The mother has made progress on her substance abuse problems an d, at the time of the hearing, had maintained approximately five mont hs of sobriety. However, her children were temporarily removed from her care primarily b ecause of domestic violence – an ongoing problem the mother has experienced for ov er twelve years and

which has resulted in the removal of all seven of her children from her custody. The record shows that the mother continues to seek out, cultivate, and mai ntain relationships with violent men. The evidence supports the trial court’s finding th at the mother’s actions show an unwillingness to provide an adequate permanent home for the children. {¶30} After weighing the evidence and all reasonable inferences, cons idering the credibility of the witnesses after according the requisite defe rence to the trial court’s determinations, we conclude that in resolving evidentiary confl icts, the trial court did not clearly lose its way or create a manifest miscarriage of justic e so that we must reverse its judgment awarding permanent custody of the children to the agen cy. We overrule the mother’s sole assignment of error and affirm the judgment of th e trial court awarding permanent custody to the agency.

IV. CONCLUSION {¶31} The trial court’s determinations that the permanent commitment is in the best interest of the children are not against the manifest weig ht of the evidence. HavingPike App. No. 19CA899 13

overruled the assignment of error, we affirm the judgment of th e trial court awarding permanent custody of the children to the agency.

JUDGMENT AFFIRMED.Pike App. No. 19CA899 14

JUDGMENT ENTRY It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Pike County Court of Common Pleas, Juvenile Division to carry this judgment into execution. Any stay previously granted by this Court is hereby terminated as of the date of this entry. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & McFarland, J.: Concur in Judgment and Opinion.

For the Court

BY : ________________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, t his document constitutes a fin al judgment entry and the time period for fu rther appeal commences from the date of filing with the clerk.