In re J.B.

[Cite as In re J.B., 2013-Ohio-1705.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 98565

IN RE: J.B.
A Minor Child

[Appeal by Mother R.B.]

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 09901437

BEFORE: McCormack, J., Jones, P.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: April 26, 2013
ATTORNEYS FOR APPELLANT

Anita Barthol Staley
7327 Center Street
Mentor, OH 44060

Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, OH 44123

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Michelle A. Myers
Assistant County Prosecutor
C.C.D.C.F.S.
4261 Fulton Parkway
Cleveland, OH 44144

GUARDIAN AD LITEM

Michael B. Granito
24400 Highland Road
Suite 162
Richmond Hts., OH 44143

TIM McCORMACK, J.:
 {¶1} Appellant, R.B. (“appellant”), appeals the judgment of the Cuyahoga

County Court of Common Pleas, Juvenile Division, granting permanent custody of her

daughter, J.B., to the Cuyahoga County Department of Children and Family Services

(“CCDCFS” or “the agency”).

{¶2} As dictated by the statute, the controlling analysis in a permanent custody

matter is the best interest of the child. After a careful review of the record, we find that

clear and convincing evidence supports the trial court’s determination that granting

permanent custody to the agency is in the best interest of J.B. We affirm the trial court’s

decision.

{¶3} Our decision today directly and profoundly affects J.B.’s life. The questions

we are called upon to answer are, with whom and where will this bright little girl grow

up? What family setting is best for her?

{¶4} J.B.’s mother, grandmother, great-grandmother, her foster parents, and

especially her four-year-old cousin, with whom J.B. has lived nearly since birth, are each

profoundly affected by our decision as well.

{¶5} This determination, while ultimately made by this Court of Appeals, is the

culmination of years of effort by family members, professionals, and J.B.’s foster family

to humanely and accurately answer the question posed by the circumstances surrounding

J.B.’s young life. That question being, from this day forward, what family life, what

home is in the best interest of J.B.? What home will best provide for her safety, security,
her nurturing, shared affection, and hold the best prospect for her living up to her fullest

potential?

{¶6} Many persons of good faith have worked diligently to shape our collective

understanding of J.B.’s best interest. Both in the immediate and long term, it is vital to

J.B.’s well being to be able to clearly understand how we reached this decision. J.B.’s

biological and foster family members need to know as well our reasoning beyond the

recitation of legal precedent. For all of the collective work on J.B.’s behalf to date, we

need to be especially clear here in our determination, so that there be a life plan developed

for J.B. and a process of healing can begin.

Background

{¶7} In late 2008, Angelique C.’s (“Grandmother Angelique”) two minor

daughters gave birth several weeks apart. On October 9, 2008, her 13-year-old daughter,

S.B., gave birth to a girl. Weeks later, on November 4, 2008, her 15-year-old daughter

(appellant), also gave birth to a girl.

{¶8} An incident involving domestic violence occurred on January 29, 2009,

which caused the removal of both appellant’s and S.B.’s child.

{¶9} Four days later, on February 2, 2009, CCDCFS took emergency custody of

both babies; appellant’s baby was less than three months old, and S.B.’s baby was less

than four months old.
 {¶10} In August 2009, seven months after the agency took temporary custody of

the babies, both babies were placed in the same foster home and have remained there

since that time.

{¶11} This appeal concerns appellant’s child, J.B., only. S.B.’s child, who has the

same initials as J.B., is the subject of a companion case, In re J.B., 8th Dist. No. 98546.

Procedural History

{¶12} On June 16, 2009, the trial court found J.B. to be neglected and dependent.

On September 13, 2009, the trial court committed her to the temporary custody of the

agency.

{¶13} Subsequently, J.B.’s maternal great-grandmother, Sanetta C.

(“Great-grandmother Sanetta”), filed a pro se motion for legal custody of J.B.

{¶14} On November 24, 2009, the agency filed a motion for an extension of

temporary custody. On January 4, 2010, the trial court granted the extension. On

June 7, 2010, the court reviewed the matter and determined appellant was still in need of

case plan services.

{¶15} On July 20, 2010, CCDCFS filed a motion for permanent custody.

Grandmother Angelique also filed a motion for legal custody.

{¶16} On September 8, 2010, the trial court reviewed the matter again and

determined that although appellant was engaged in services, progress had not been made.
The court ordered the case plan to include Great-grandmother Sanetta and Grandmother

Angelique.

{¶17} On September 23, 2010, J.B.’s foster parents moved to intervene in the case;

the trial court denied the motion. This court affirmed the trial court’s decision. In re

J.B., 8th Dist. No. 96652, 2011-Ohio-4830.

{¶18} On December 14, 2010, appellant filed for legal custody of J.B.

GAL Report Prior to the Permanent Custody Trial

{¶19} Before the trial for permanent custody, the guardian ad litem (“GAL”) for

J.B. filed his report on November 1, 2011. He interviewed appellant, Grandmother

Angelique, Great-grandmother Sanetta, the foster mother, and the agency’s social worker.

However, because of J.B.’s young age, the GAL determined that J.B. was not of

sufficient age or maturity to express her wishes. He attended several supervised visits

and last observed J.B. at the visit in October 2011. He had not attended any in-home

visits.

{¶20} In the GAL’s report, he noted the agency was critical of appellant because

of her lack of commitment with the agency and her inconsistent record with regard to

visitation. However, since the birth of her second child in 2011, she has been more open

and cooperative with the GAL. He observed her in the apartment she shared with her

older sister, which he found to be clean and appropriate for appellant and her second
child but inadequate for the addition of another child. He was told, however, that the

social worker has yet to be able to get into that apartment on unscheduled visits.

{¶21} At the October 2011 visit, the GAL found that appellant showed more

appropriate behavior with her children. He also had a chance to talk to appellant’s older

sister and was impressed with the older sister’s parental skills.

{¶22} The GAL reported a great deal of animosity and resentment that had

developed between Grandmother Angelique, the agency, and the foster parents. He

reported that appellant followed her mother Angelique’s advice closely. Meanwhile,

Grandmother Angelique had not attended the visits consistently. The GAL expressed his

concern about whether she would protect and nurture J.B. if she were given custody.

{¶23} Regarding Great-grandmother Sanetta, the GAL noted the agency had not

considered her because she was convicted of a crime 28 years ago. The offense appeared

to fall into the categories excluding agency placement. The GAL, however, questioned

the agency’s position, because she was subsequently considered to be suitable for custody

of children of other family members. The GAL noted she attended all the visits and

showed concern for J.B. He also found her residence to be appropriate.

{¶24} The GAL concluded that he was pleased with appellant’s recent progress

and that he was satisfied that her older sister would be available to assist appellant if

needed. Accordingly, he recommended that J.B. be returned to the legal custody of

appellant, with protective supervision by CCDCFS.
 {¶25} In February 2012, the matter proceeded to trial on CCDCFS’s permanent

custody motion. The agency presented the testimony of two social workers who had

been assigned to J.B.’s case and J.B.’s foster mother and foster father.

The Social Workers’ Testimony at the Trial

{¶26} Two agency social workers, Sarah Narine and Justin Fraley, testified at

length at the trial. Narine worked on this case for over two and one-half years from

January 2009 to September 2011. Fraley took over the case after September 2011.

They testified about (1) the case plan for appellant, which included components for her

schooling, her emotional stability, and her housing; (2) appellant’s second child; (3) J.B.’s

visits with the biological parents; (4) J.B.’s foster parents; (5) Grandmother Angelique;

and (6) Great-grandmother Sanetta. We recount their testimony in the following.

{¶27} Narine testified that the agency created a case plan for appellant. The plan

included education, counseling for her emotional stability, domestic violence, and

parenting education. The agency’s goal was reunification of appellant and her child.

When appellant reached 18 years of age, the agency added a housing component to the

case plan.

A. Appellant’s Schooling and Emotional Stability

{¶28} Appellant, 20 years old at the time of the permanent custody hearing, had

trouble attending school regularly. She attended six different schools during the

agency’s involvement. She was unable to obtain a high school diploma or its equivalent.
 {¶29} Regarding appellant’s emotional stability, she was diagnosed with

depression in the same year J.B. was born. She had problems controlling her anger. She

would state she was stressed, and she had some outbursts. Narine testified that

appellant’s emotional stability was always a concern for the agency.

{¶30} As part of her case plan, the agency referred appellant for counseling for

mental health stability and for dealing with her aggressive behavior in the community.

She was resistant to counseling services in the first year, but she was eventually linked

with a counselor in a local program to address those emotional issues. Her attendance,

however, was not consistent. Despite the counseling services provided to her to control

her anger, she was still involved in fighting incidents. Because of her inconsistent

participation in the counseling services, the agency felt she had not achieved emotional

stability. When her second child was born in April 2011, she reported feeling very

overwhelmed.

{¶31} Because appellant was not consistent with her attendance or participation,

the agency concluded that she did not meet the objectives of this part of her case plan.

B. Parenting Classes

{¶32} Regarding the parenting component part of the case plan, appellant made

more efforts. She was initially referred to DePaul School for Young Parents, which

included school and parenting classes. She completed the parenting class there.

Appellant also participated in a parenting class at Dasi-Ziyad Family Institute, but,
according to Narine’s testimony, she took “a very long time” to complete the 16-week

program. Appellant also reported to Narine she was participating in the Beech Brook

parenting program, although she did not complete the program. Appellant did complete

a “TAPS” parenting program, which she sought out herself.

C. Visits

{¶33} Regarding visits with J.B., the visits took place weekly in an agency setting

for two hours each. They were supervised. Appellant came to the visits regularly but

was often very late. When J.B. was an infant, appellant would hold her, feed her, change

her, and was attentive to her needs. As J.B. got older, appellant would play with her and

engage her. J.B., however, had difficulties adjusting at the beginning of the visits. She

would cry a lot and would try to leave. When she starting speaking, she would say, “I

want to go home.” After 15 or 20 minutes, she would then relax and interact with

appellant and the other family members. The agency worked with appellant on easing

these difficulties during the visits. Despite appellant’s participation in the parenting

classes, Narine found that during the visits with J.B., appellant “wasn’t engaging and she

wasn’t bonding or involved with her child as much.”

{¶34} Narine also observed appellant talking and texting on her phone during

some of the visits, which prompted the social worker’s request that she take an additional

parenting course.
 {¶35} The second social worker on the case since September 2011, Fraley,

described how J.B. acted when he picked her up for the visits:

Crying [the] whole time and wanting to go back. I would ask her

specifically, you know, [J.B.], you are going to see mommy. No, no, no, I

don’t want to. I don’t want to. She would cry until we got off of 490 at

about 55th. So from Solon all the way she would cry and she would calm

down eventually once the visit got going.

Once she got there, she interacted well with the family members.

{¶36} The agency started weekly in-home visits on December 17, 2011.

Appellant was required to be present at pick-up and drop-off at a neutral location. The

site was an RTA station. The foster father was responsible for transporting J.B. to the

RTA station for these in-home visits. He would drop J.B. off but she would cling to him,

not wanting to go. On the way back, she would appear “upbeat.”

{¶37} At the fourth in-home visit, without informing the agency, appellant

changed the location of the visit to her mother Angelique’s home, a violation of the case

plan, and appellant falsely told Fraley that there was a gas leak in their apartment. While

at Grandmother Angelique’s home, J.B. “didn’t appear to be herself. * * * She was

very quiet, very withdrawn, [and] she had very minimal interaction. * * * I [Fraley]

observed her to be behaving differently.”
 {¶38} Because of the uncertainty of her housing situation, the agency amended the

case plan to the in-home visit taking place in Great-grandmother Sanetta’s house.

{¶39} On the day of Christmas Eve, an in-home visit was missed when appellant

called the foster father to tell him a family member would be picking up J.B. from the

neutral location (an RTA station) instead. The foster father was informed by Fraley that

it was not permitted. No explanation was given as to why appellant could not come to

the RTA station to pick up J.B. herself.

D. Appellant’s Second Child

{¶40} Appellant gave birth to another child, a boy, in April 2011. The agency

initially took custody of the child, but the trial court returned custody to appellant a short

time after removal. Appellant continued to parent her son without agency involvement.

Narine visited appellant and her new baby in appellant’s home. She had a crib for him,

but Narine had to remind her to remove objects from the crib that may be harmful to him.

{¶41} Appellant told Narine that she was overwhelmed, although Narine observed

appellant’s care of her son to be appropriate. Narine believed that adding J.B. into

appellant’s life would have overwhelmed her more. Moreover, her relationship with her

son was different from her relationship with J.B. — she had cared for him for a much

longer time than she had J.B. In addition, her housing situation was not stable in that she

went back and forth between her own home and her mother Angelique’s home, and
sometimes her father’s home. She lacked appropriate housing for two children and

needed a dependable support system.

{¶42} When Fraley was asked why the agency determined appellant could take

care of her second child but not J.B., he testified similarly to Narine, explaining that

appellant had her son the entire time, whereas the bond was not there with J.B., based on

his observation of her kicking and screaming and saying she doesn’t want to see her

mom. J.B.’s resistence did not change after several in-home visits.

E. Housing

{¶43} Regarding appellant’s housing, when she turned 18 in 2010, she was on a

lease for a CMHA two-bedroom home with an older sister. She was, however, back and

forth between the CMHA home and her mother Angelique’s home, because she did not

feel comfortable staying at the CMHA home by herself at times. Although appellant was

on the lease on an apartment she shared with her older sister, she moved out at one point

and was dishonest with the social worker about why she had moved out. At the time of

trial, appellant was no longer on the lease on the shared apartment. Appellant’s counsel,

however, produced a letter indicating she had been assigned an apartment unit, pending

completion of necessary paperwork.

F. Appellant’s Lack of Support and Encouragement from Family

{¶44} Narine described some degree of family support but believed the family

support fell short for purposes of reunification. She believed they could have
encouraged and monitored appellant more and provided more emotional support. They

should have shown her how to balance school and the social services, and helped her with

transportation to various services and programs. At the meetings with the agency, which

she would travel to on her own, the family members would remark that appellant’s

behaviors were “all on her own.” Appellant had conveyed to Narine her wish that her

family would be more supportive of her.

{¶45} Overall, Narine’s testimony reflects that from the beginning, the agency’s

goal had been reunification with the family. Appellant though failed to achieve stability,

either emotionally or in her environment. This despite some support from her family.

G. The Foster Parents

{¶46} Fraley testified he observed J.B. in her foster family home every week. She

has structure in the home where she had daily naps and snacks. She seems comfortable

and bonded with both foster parents equally. The foster family had a newborn at the time

of the trial, and J.B. called him her brother. Fraley also described J.B.’s relation with her

cousin as very strong.

{¶47} Fraley described the relationship between appellant and J.B. as a “slight

bond,” while testifying to J.B.’s attachment to her foster parents. The trial court asked if

Fraley had ever spoken to J.B. regarding her placement. Fraley testified that J.B.

“consistently expresses that she wants to stay with [foster mother] * * *. When I ask her
and try to encourage her about going to see her mother * * *[,] [s]he says, No, I want to

go back to [foster mother’s] house * * *.”

H. Grandmother Angelique

{¶48} The agency considered placement of J.B. with Grandmother Angelique.

The agency eventually disapproved it. Grandmother Angelique herself had a lengthy

history with the agency. She had an “open case” with the agency in 2005 or 2006.

When the agency explored Grandmother Angelique’s interest in having J.B. placed with

her, she indicated she was overwhelmed with her own children. In addition to appellant

and S.B., she has three younger children. It would be very difficult to provide and care

for an additional child. According to Narine’s testimony, even after Grandmother

Angelique filed for legal custody in July 2010, she was still stating to the agency that she

was overwhelmed, that “it’s too much,” that she has her kids to take care of, and that “she

has her own life to live.” There were inconsistent statements made by her at that time as

to whether she was or was not overwhelmed. The agency was aware of one incident

where one of her children was left in a store.

{¶49} As to Grandmother Angelique’s visits with J.B. and her cousin, Narine

testified the following:

There has [sic] been times where she [Grandmother Angelique] has gotten
angry and if it was at me, then I will leave. But it’s been in front of the
girls and it scared them, that happened. There are times that she is
appropriate. She will play with them, she will bring them snacks, but then
there are those times that there is some inappropriate behaviors [with other
family members present at the visits], yes.
 {¶50} Grandmother Angelique initially attended the visits consistently. Her

attendance later became very inconsistent. She did cooperate with the agency and made

efforts to get appellant enrolled in the Life Skills Program. She also tried to get her to

attend GED classes. In fact, Grandmother Angelique tried to enroll in school herself.

She also cooperated with the agency and assisted in appellant’s getting help to address her

mental health issues.

{¶51} The agency also asked Grandmother Angelique, appellant’s father, and

Great-grandmother Sanetta to attend a parenting program, which they completed.

{¶52} Narine acknowledged that there was animosity from Grandmother

Angelique toward Narine and their relationship was strained after the agency filed for

permanent custody.

{¶53} The agency also considered appellant’s father for placement of J.B. They

subsequently denied it because he was not employed, lived with his own mother in a

two-bedroom apartment, where another child also resided. He was not very involved

with the case. He rarely attended meetings or visits. The agency was concerned with

his ability to control appellant’s decision-making regarding J.B. J.B. knows Angelique is

her grandmother. Appellant’s father would attend visitation only now and then.
 I. Great-grandmother Sanetta

{¶54} In addition, the agency considered Great-grandmother Sanetta for a potential

placement. Great-grandmother Sanetta was not forthcoming with the agency regarding

her criminal history. The agency learned that she had been convicted of gross sexual

imposition, for which she served five years in prison. In addition, Narine testified that

great-grandmother’s health was also a concern for the agency, although Narine did not

elaborate on her health issues.

{¶55} The agency was aware that, despite her conviction, she was given custody of

a nephew and a niece in 1992, and subsequently, she was also appointed the caregiver of

another niece. She raised all three to adulthood. The agency had received complaints

regarding these children, which were either unsubstantiated or referred for various

services. She lived in Texas but was in the process of moving back to Cleveland to help

her daughter Angelique with Angelique’s children. She had been previously in touch

with the agency due to appellant’s own juvenile court proceedings. When J.B. was taken

into custody in January 2009, the agency contacted Great-grandmother Sanetta, and she

indicated her interest in having J.B. placed with her. Narine testified great-grandmother

has not wavered in her commitment to care for J.B.

{¶56} Great-grandmother Sanetta attended the visits with J.B. consistently and

conducted herself appropriately. J.B. called Great-grandmother Sanetta her “big

grandma.”
 Foster Mother’s Testimony

{¶57} Both foster parents testified at trial. The foster mother testified that J.B.

was placed into her home in August 2009. The agency told her and her husband that the

goal was reunification. Because J.B., by that time, had already been in the agency’s

custody for eight months, she was on a fast-track reunification. They were told the

placement would be six months.

{¶58} Because the goal of the case was reunification, both foster parents worked

with appellant to pursue the goal of reunification. In 2010, they took it upon themselves

to reach out to appellant and her family. They tried to include appellant in J.B.’s life.

They took appellant and J.B. to the zoo and went to Chuck E. Cheese together for J.B.’s

second birthday party. The foster mother also took appellant and J.B. to a clinic for a test

to establish paternity. The foster parents invited appellant to other activities, but she did

not attend. Because Grandmother Angelique felt J.B. and J.B.’s cousin should meet with

Great-grandmother Sanetta, the foster mother and Grandmother Angelique coordinated a

visit with her. The foster mother took pictures of the family and mailed the pictures to

them. Appellant did not attend this event, however. The foster mother and her husband

also organized a Labor Day picnic for appellant’s family. Appellant did not attend this

event. She also invited appellant to go to the Cleveland Public Library for a story time

activity. Appellant did not attend this event either. According to the foster mother,

appellant did not seem interested in seeing J.B. When the foster mother took J.B. for her
regular dental and medical checkups, the agency would inform appellant of these

appointments and invite her to participate. She did not attend them. Great-grandmother

Sanetta tried to come to a dental appointment, but she got lost.

{¶59} To help J.B. know her biological family, the foster mother took many

photographs of J.B.’s family and posted them in her room. J.B. knows who her mother is

and on one occasion said, “I love my mommy R* * *.”

{¶60} Appellant improved in 2011. The foster mother would see appellant

frequently at the supervised visits at the agency when she dropped off J.B. for the visits.

They had an amicable relationship. Because J.B. had difficulties with transition, she

would stay a little longer and encourage J.B. before leaving. Great-grandmother Sanetta

attended these visits most consistently. Appellant typically arrived late.

{¶61} The foster mother described J.B. as very smart and articulate. J.B. asked a

lot of questions about the visits. When the visits progressed to in-home visits on

Saturdays, she had to spend a lot of time with J.B., preparing her for the visits on Friday

nights. The preparations were difficult because J.B. had many questions. She would

say: “ Can you come with me?”; “Why do I have to go?”; “Will you pick me up early?”;

“Can you stay with me?”; “Can [foster father] come too?” She would also ask if her

cousin had to go too. On Saturday morning, it would be chaos trying to get her out the

door and into the car. J.B. would literally “flee from the scene” by running from the
front door down the hallway to get away from them and refusing to put on her coats and

shoes.

{¶62} The foster mother would talk to J.B. about these visits, trying to encourage

her. J.B. would mention a few things she did in appellant’s home, and would say “I

don’t want to go.” After the in-home visits began, both foster mother and J.B.’s teacher

at the day care, which J.B. attended twice a week, noticed that J.B. started to chew her

fingers. Also, she became very reluctant to go to the weekly supervised visits on

Wednesday nights. During a trip to the visitation, she said, “I want to jump out of the car

right now,” which worried the foster mother. She would be “verbally and physically

upset, crying, screaming” when she was dropped off for the weekly visits.

{¶63} The foster mother stated that she has a great relationship with J.B. She

described her as a “wonderful, brilliant” child. J.B. is very bonded to both foster parents.

The foster mother gave birth to a baby boy in November 2011. J.B. loved the baby.

She would kiss and hug the baby before she left the house and before she went to bed.

{¶64} Regarding J.B.’s cousin, the two girls have been raised together their entire

life, now almost four and one-half years, and had been together in the foster family for

two and one-half-years at the time of the custody trial. The foster mother described them

as “more than sisters” and “more than twins.”

{¶65} The foster mother testified that J.B. is bonded to her and her husband’s

extended family as well. J.B. calls the foster mother’s mother-in-law “Nana” and her
father-in-law “Pop.” They watch J.B. and her cousin two days a week. The girls spent

the night at their house when the foster mother had her baby. The girls are also very

bonded with the foster mother’s mother, her father, and her 17-year-old sister. The foster

mother’s mother, whom J.B. calls “Grammy,” would come to their home to help out and

was a major help with raising J.B.

{¶66} The foster mother stated that around September 2010, the reunification plan

came to a halt and the agency was considering a filing of permanent custody. She and

her husband then offered to take legal custody of J.B. as an alternative to permanent

custody. Great-grandmother Sanetta “gave her blessings.” The foster mother was aware

Grandmother Angelique and Great-grandmother Sanetta had also filed for legal custody

but understood that the agency did not approve them.
 Foster Father’s Testimony

{¶67} The foster father testified that he and his wife transported J.B. for the visits.

When the agency added Saturday home visits in December 2011, he was the one dropping

off and picking up J.B. for these visits. J.B. appeared to be anxious the night before

these visits, asking “Who’s dropping me off? Who’s picking me up? Are you picking me

up?” over and over again. On the morning of the visits, it would be very difficult to get

her out of the house. During the trip to the drop-off location, a rapid station, she would

“lock up” — stop talking to him. Once they got there, when appellant arrived, J.B.

would start acting out and crying, saying, “Do I have to go[?] Is my cousin going to be

there? Are you picking me up? Can you come with me?” When appellant took J.B., J.B.

would cry and say “Can you just walk with me to the bus station?” After the visit, she

would be very quiet in the evening.

GAL’s Testimony

{¶68} The guardian ad litem (GAL), Michael Granito, who had prepared a report,

summarized his report. He recommended that J.B. be reunited with appellant. He

commended the foster family for having done a good job raising J.B., but he found

appellant to have matured over the course of the case and to have the ability to take care

of two children. The GAL admitted he had not observed the child in the foster family’s

home since 2009 and had not observed the in-home visits. He felt that there would need

to be a transition period and J.B. would need time to bond with appellant. The GAL’s
testimony focused on appellant’s maturity and ability to parent, but he offered little about

the best interest of J.B.

{¶69} There was no testimony from Grandmother Angelique or Great-grandmother

Sanetta

{¶70} On June 4, 2012, the trial court issued its decision committing J.B. to the

permanent custody of CCDCFS and denying all motions for legal custody.

{¶71} Appellant filed a timely notice of appeal. Both Grandmother Angelique

and Great-grandmother Sanetta also appealed the trial court’s decision. See In re J.B.,

8th Dist. Nos. 98566 and 98567 (Grandmother Angelique’s appeal), and In re J.B., 8th

Dist. Nos. 98518 and 98519 (Great-grandmother Sanetta’s appeal).

Appeal

{¶72} On appeal, appellant raises one assignment of error for our review:

The trial court erred in granting the motion for permanent custody as such

decision was against the manifest weight of the evidence and resulted in a

manifest miscarriage of justice.

{¶73} Under her sole assignment of error, appellant argues that the trial court’s

decision to grant permanent custody of J.B. to CCDCFS was not supported by the

evidence.

{¶74} We begin with the recognition that “a parent’s right to raise a child is an

essential and basic civil right.” In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997).
 “The permanent termination of parental rights has been described as the family law

equivalent of the death penalty in a criminal case.” In re Hoffman, 97 Ohio St.3d 92,

2002-Ohio-5368, 776 N.E.2d 485, ¶ 14. “All children have the right, if possible, to

parenting from either natural or adoptive parents which provides support, care, discipline,

protection and motivation.” In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090

(8th Dist.1996). This court has emphasized that the “termination of the rights of a birth

parent is an alternative of last resort.” In re Gill, 8th Dist. No. 79640, 2002-Ohio-3242,

¶ 21. “The purpose of the termination of parental rights statutes is to facilitate adoption

and to make a more stable life for dependent children.” In re Howard, 5th Dist. No. 85

A10-077, 1986 Ohio App. LEXIS 7860, *5 (Aug. 1, 1986).

The Two-Prong Permanent Custody Analysis

{¶75} R.C. 2151.414 sets forth a two-prong analysis to be applied by a juvenile

court in adjudicating a motion for permanent custody. R.C. 2151.414(B). It authorizes

the juvenile court to grant permanent custody of a child to the public agency if, after a

hearing, the court determines, by clear and convincing evidence, that any of the four

factors apply: (a) the child is not abandoned or orphaned, but the child cannot be placed

with either parent within a reasonable time or should not be placed with the child’s

parents; (b) the child is abandoned; (c) the child is orphaned, and there are no relatives of

the child who are able to take permanent custody; or (d) the child has been in the

temporary custody of one or more public children services agencies or private child
placing agencies for 12 or more months of a consecutive 22-month period. R.C.

2151.414(B)(1)(a)-(d).

{¶76} If any of these factors exists, the trial court proceeds to analyze whether, by

clear and convincing evidence, it is in the best interests of the child to grant permanent

custody to the agency.

First Prong: R.C. 2151.414(B)(1) Factors

{¶77} R.C. 2151.414(B)(1) contains four factors. When the child is neither

abandoned nor orphaned, the court considers the possibility of reunification (“whether the

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents”), or whether the child has been in an agency’s temporary

custody for 12 out of 22 consecutive months.

{¶78} Regarding the reunification factor, R.C. 2151.414(E) enumerates 16

factors for the trial court to consider as to whether the child should be placed with either

parent. These factors include, among others, whether the parent failed to substantially

remedy the conditions causing the removal of the child, despite reasonable case planning

and diligent efforts by the agency, and whether the parent demonstrated a lack of

commitment.

{¶79} The 12-of-22-consecutive-months provision affords parents 12 months to

work toward reunification and the provision “balance the importance of reuniting a child
with the child’s parents against the importance of a speedy resolution of the custody of a

child.” In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21.

{¶80} Only one of the four factors must be present for the first prong of the

permanent custody analysis to be satisfied.

Second Prong: Best Interest of the Child Analysis

{¶81} Once the juvenile court ascertains that one of the four factors listed in R.C.

2151.414(B)(1) is present, then the court proceeds to an analysis of the child’s best

interest.

{¶82} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates that the juvenile court must consider all relevant factors,

including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers, and
any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;

(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period * * *;

(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
 (e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

Standard of Review

{¶83} R.C. 2151.414 requires the court to find, by clear and convincing evidence,

(1) one of the factors enumerated in R.C. 2151.414(B)(1)(a)-(d), and (2) an award of

permanent custody is in the best interest of the child. Clear and convincing evidence is

that which will produce in the trier of fact “‘a firm belief or conviction as to the facts

sought to be established.’” In re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481

N.E.2d 613 (1985), quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

at paragraph three of the syllabus. While requiring a greater standard of proof than a

preponderance of the evidence, clear and convincing evidence requires less than proof

beyond a reasonable doubt. In re Parsons, 9th Dist. Nos. 97CA006662 and

97CA006663, 1997 Ohio App. LEXIS 5141 (Nov. 12, 1997).

{¶84} As for our own role on appeal from the trial court’s decision, we are

reminded a juvenile court’s termination of parental rights and an award of permanent

custody to an agency is not to be reversed unless the judgment is not supported by clear

and convincing evidence. In re: Dylan C., 121 Ohio App.3d 115, 121, 699 N.E.2d 107

(6th Dist.1997).

The Trial Court’s Findings Regarding the First Prong
 {¶85} Regarding the first prong, CCDCFS established, and the trial court found,

that one of the four R.C. 2151.414(B)(1) factors existed — the child has been “in the

temporary custody of one or more public children services agencies * * * for twelve or

more months of a consecutive twenty-two month period * * *.”

{¶86} This finding is supported by the record. Pursuant to R.C. 2151.414(B)(1),

for the purposes of this section, a child is deemed to have entered the temporary custody

of an agency on the earlier date of the date the child is adjudicated as neglected or

dependent, or the date that is 60 days after the removal of the child from home.

{¶87} In this case, the agency removed J.B. from the home on January 29, 2009;

thus, the date that is 60 days after the removal is March 29, 2009. The date the child was

adjudicated as neglected and dependant is on June 16, 2009. The earlier date of these

two is March 29, 2009. The agency filed its motion for permanent custody on July 10,

2010. Therefore, under R.C. 2151.414(B)(1), J.B. is deemed to be in the temporary

custody of CCDCFS for over 12 months, 15 months to be exact.

{¶88} Because one of the four R.C. 2151.414(B)(1) factors existed, the factor set

forth in R.C. 2151.414(B)(1)(a) — the possibility of placement with either parent within a

reasonable time — is not determinative in this case. In re C.W., 104 Ohio St.3d 163,

2004-Ohio-6411, 818 N.E.2d 1176, ¶ 21; see also In re D.A., 8th Dist. No. 95188,

2010-Ohio-5618, ¶ 44. “The court does not need to determine that the child cannot or

should not be placed with either parent within a reasonable time [when] the child has
been in the temporary custody of one or more public children services agencies for more

than 12 of the last 22 months.” In re M.H., 8th Dist. No. 80620, 2002-Ohio-2968, ¶ 25;

see R.C. 2151.414(B); see also In re William S., 75 Ohio St.3d 95, 99, 1996-Ohio-182,

661 N.E.2d 738.

{¶89} Although the trial court did not have to engage in an R.C. 2151.414(B)(1)(a)

analysis, i.e., the possibility of placement with either parent within a reasonable time, the

trial court did engage in such an analysis, applying several pertinent factors enumerated in

R.C. 2151.414(E), which, as we stated above, including whether the parent failed to

substantially remedy the conditions causing the removal of the child, despite reasonable

case planning and diligent efforts by the agency.

{¶90} Applying the R.C. 2151.414(E) factors, the trial court found that following

the placement of J.B. outside of her home, and despite reasonable case planning and

diligent efforts by CCDCFS to assist appellant to remedy the problems that initially

caused J.B. to be placed outside the home, appellant failed to remedy the conditions that

caused the removal. The trial court found that relevant services were provided, but

appellant did not meet the objectives of her case plan that was designed to reunite J.B.

with appellant.

{¶91} The trial court did recognize that appellant was now no longer a minor, and

had made significant progress in the parenting part of the case plan and visitation with

J.B. However, the court found that appellant had only made some progress in dealing
with domestic violence and emotional stability issues. Further, the court found that she

had made insufficient progress in the areas of schooling and obtaining her own housing.

{¶92} Our own review of the trial testimony shows that during the course of the

case, appellant had been through six different schools and did not attend school on a

regular basis. Although appellant at one point enrolled in GED classes and attended life

skills classes, she did not complete her education and remained at a 10th or 11th grade

level as of September 2011. Appellant was initially resistant to engaging in services to

address her mental health needs, including depression and anger issues. Despite the

counseling services provided to address her anger, and despite her attendance in

counseling services through Murtis Taylor, there were still reports of her fighting in the

community. Thus, the social workers deemed her emotional stability not to have been

established.

{¶93} After appellant reached the age of majority, the case plan was amended to

include a housing component. There was evidence that appellant had been residing in a

home with her sister, and appellant was named on the lease for a time. However,

appellant was continually back and forth between both her mother Angelique’s home and

her father’s home, due to her conflicts with family members. Although there was

evidence indicating that appellant had recently applied for housing, consistency of the

housing component of the case plan had not been established.
 {¶94} The record reflects appellant made progress on the parenting component of

the case plan. She completed the parenting class in DePaul School. However, it took

her a very long time to eventually complete another 16-week parenting program. Even

if the parental-classes part of the case plan is deemed completed, as this court has

previously recognized, successful completion of a case plan is not necessarily dispositive

on the issue of reunification and does not preclude a grant of permanent custody to a

social services agency. In re C.C., 187 Ohio App.3d 365, 2010-Ohio-780, 932 N.E.2d

360, ¶ 25 (8th Dist.).

{¶95} Therefore, although the trial court need not make the R.C.

2151.414(B)(1)(a) finding in this case, it did. And, based on the trial testimony, we find

that there was clear and convincing evidence to support the court’s determination that J.B.

cannot be placed with appellant within a reasonable time, because, despite reasonable

case planning and diligent efforts by the agency, appellant failed to remedy the conditions

that caused J.B.’s removal.

{¶96} Appellant argues on appeal that the agency did not show that it made

reasonable efforts to reunify J.B. with her and the trial court erred in finding that it had.

{¶97} We note that R.C. 2151.419(A)(1), which relates to the agency’s obligations

to show that it made reasonable efforts to prevent removal or to return the child home,

applies only to hearings held pursuant to R.C. 2151.28 (adjudicatory hearings), division

(E) of R.C. 2151.31 (ex parte emergency orders for custody), R.C. 2151.314 (detention or
shelter care), R.C. 2151.33 (temporary care or emergency medical treatment), or R.C.

2151.353 (disposition of abused, neglected, or dependent child. See In re C.N., 8th Dist.

No. 81813, 2003-Ohio-2048.

{¶98} In this case, the motion before the trial court was one for permanent custody

under R.C. 2151.413; therefore, a reasonable efforts determination generally is not

required. In re La.B., 8th Dist. No. 81981, 2003-Ohio-6852; In re Z.T., 8th Dist. No.

88009, 2007-Ohio-827, ¶ 49. While R.C. 2151.419(A)(1) does not apply to a motion for

permanent custody brought pursuant to R.C. 2151.413, “the state must still make

reasonable efforts to reunify the family during the child-custody proceedings prior to the

termination of parental rights” and if reasonable efforts have not been demonstrated prior

to the hearing on permanent custody, the agency “must demonstrate such efforts at that

time.” In re: C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 43. Here,

the trial court found the agency provided a reasonable case plan and made diligent efforts.

After a review of the full record, we find the evidence supports the trial court’s finding.
The Trial Court’s Findings Regarding the Second Prong (Best Interest of the Child)

{¶99} R.C. 2151.414(D)(1)(a) through (e) set forth the relevant factors that a court

should consider in determining the best interest of the child. The satisfaction of one of

these enumerated factors permits an award of permanent custody. In re D.A., 8th Dist.

No. 95188, 2010-Ohio-5618, at ¶ 46; In re Moore, 8th Dist. No. 76942, 2000 Ohio App.

LEXIS 3958 (Aug. 31, 2000), citing In re Shaeffer Children, 85 Ohio App.3d 683, 621

N.E.2d 426 (3rd Dist.1993). In addition, this court has expressed the view that the

discretion that a trial court has in custody matters should be accorded the utmost respect,

given the nature of the proceeding and the impact the court’s determination will have on

the lives of the parties concerned. In re L.C., 8th Dist. No. 93657, 2010-Ohio-778, ¶ 16,

citing In re Satterwhite, 8th Dist. No. 77071, 2001-Ohio-4137.

{¶100} Here, the trial court found by clear and convincing evidence that granting

of permanent custody to be in J.B.’s best interest, upon considering the following: (1) the

interaction and interrelationship of the child with her parents, siblings, relatives, and

foster parents; (2) the custodial history of the child; and (3) the child’s need for a legally

secure placement and whether such a placement can be achieved without permanent

custody.

{¶101} Our own review of the record reflects that the requisite statutory

considerations were made and that the trial court’s determination was supported by clear

and convincing evidence.
 {¶102} As an initial matter, we point out that the trial court recognized the GAL

recommended a denial of a granting of permanent custody. The trial court nonetheless

determined that clear and convincing evidence supports a grant of permanent custody to

CCDCFS to be in the best interest of J.B. We observe that a trial court is bound to

consider but not bound to accept a recommendation of the guardian ad litem, agency, or

any other parties. The ultimate decision is for the judge. The court must act upon a

consideration of all evidence presented. In re T.S., 8th Dist. No. 92816,

2009-Ohio-5496, ¶ 34. Appellant argues on appeal that the trial court denied her due

process rights by eliciting testimony from one of the social workers and questioning the

GAL regarding the child’s best interest, Evid.R. 614(B) permits a court to interrogate

witnesses in an impartial manner. After reviewing the transcript, we find that the trial

court acted impartially and that there was no violation of the mother’s due process rights.

{¶103} We now turn to our review of the evidence. The record reflects that J.B.

was removed from appellant when she was less than three months old. At the early

visits, when J.B. was still a baby, appellant would hold her and attend to her needs.

However, appellant’s visits were mostly supervised and she had other family members

present to assist her at the visits. The foster family tried to include appellant in J.B.’s

life. Appellant did not seem interested in attending these events, which were provided

for her to spend more time with J.B. outside of supervised visits.
 {¶104} Sarah Narine testified that appellant reported being overwhelmed with the

care of her second child and believed the addition of a four-year-old would make the

situation worse. Although appellant eventually completed the parental classes provided

in the case plan, her domestic violence and emotional issues have not been convincingly

addressed. Regarding her housing issues, at the time of the custody trial, she was only

able to produce a letter showing she received an assignment of an apartment unit. The

GAL opined that although he thought J.B. should be returned to appellant’s custody, she

would need a safety plan and protective supervision.

{¶105} Grandmother Angelique was inconsistent in attending the visits, has

several minor children of her own, and indicated on several occasions that she was

overwhelmed. She also would get angry with the social worker in front of J.B. The

GAL questioned whether the grandmother would protect and nurture J.B. if given

custody.

{¶106} Although Great-grandmother Sanetta had consistently attended the visits

and made progress toward her case plan objectives, she had not been open with CCDCFS

with regard to her diagnosis and treatment requirements. Also, she was not initially

forthcoming about her prior felony conviction for a sex crime. The GAL did note that

the great-grandmother had subsequently been found suitable for custody of other children

and had appropriate housing. However, even if great-grandmother were an option for

placement, “[t]he statute does not make the availability of a placement that would not
require a termination of parenting rights an all-controlling factor [and] does not even

require the court to weigh that factor more heavily than other factors.” In re Schaefer,

111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. To have it any other way

would ignore, subsume, suffocate, and deny our humanity.

{¶107} We are aware J.B.’s biological family has shown a strong desire for her to

be returned to them. Family unity and blood relationship are vital factors to carefully and

fully consider. To protect the child’s interest, though, biological relationship cannot be

controlling in itself. In re T.W., 8th Dist. Nos. 86084, 86109, 86110, 2005-Ohio-6633, ¶

15. Nor is the existence of a good relationship, in itself, controlling. Id. The

paramount consideration now and at each stage of such proceedings is the best interest of

the child. All relevant factors must be considered when making that determination.

R.C. 2151.414(D)(1).

{¶108} We respect and commend the love and commitment some members of

J.B.’s biological family demonstrated at various times. We must, though, consider the

full record before us. No child can be truly safe, secure, and successful without

dependable, consistent care. Reliance upon members of a multi-generational family to

respond to the hour by hour needs of a young child, when they can manage it, is not

tolerable when full-time commitment is needed.

{¶109} Similarly, although appellant has made commendable progress in

participating in various programs addressing her mental health stability and parental
skills, we are reminded that, of necessity, at this stage of the proceedings, the best interest

determination focuses on the child, not the parent. In re D.A., 8th Dist. No. 95188,

2010-Ohio-5618, ¶ 53.

{¶110} The fact that this child has been in court-authorized foster care for several

highly successful years with the same foster family is a major factor in our decision. At

numerous points along the way of J.B.’s period of foster case, the trial court had to

determine whether out-of-home placement would continue. The court determined

several times that J.B.’s best interest was to remain with her foster family. From shortly

after her birth until today, J.B. has known one uninterrupted loving family experience.

We do not believe that rupturing that bond at this late date will make J.B. happier or safer.

We will not do so.

{¶111} J.B., together with her cousin, has developed a true bond and a sense of

security with her foster family. The foster family has provided a much needed steady,

secure, and nurturing environment, both physically and emotionally. By all accounts,

J.B. is thriving in that environment. For the sake of the infant or child’s fundamental

viability, we, as a community, must and will weigh and balance his or her total best

interest. Our instinct must be to reunite families whenever possible but never at the

expense of innocent life. J.B. is at the most critical developmental stage of her life. She

and all children need to be cared for and nurtured in a stable, secure, and structured

environment. After a careful review of the transcript of the two-day trial, we agree with
the trial court that such an environment can only be ensured by granting permanent

custody to the agency.

{¶112} We further recognize that the trial court’s decision is consistent with the

legislature’s intent to encourage the timely placement of children into a permanent home.

After being in temporary custody of the agency for almost all of her life, permanency for

J.B. is well overdue. “[N]eglected and dependent children are entitled to stable, secure,

nurturing and permanent homes in the near term * * * and their best interest is the pivotal

factor in permanency case.” In re T.S. at ¶ 35.

{¶113} Upon a thorough review of the record, we find the trial court’s

determination is supported by clear and convincing evidence contained in the record.

The assignment of error is without merit.

{¶114} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the juvenile

court to carry this judgment into execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

__________________________________________
TIM McCORMACK, JUDGE

SEAN C. GALLAGHER, J., CONCURS;
LARRY A. JONES, P.J., DISSENTS (WITH SEPARATE OPINION ATTACHED)

LARRY A. JONES, SR., P.J., DISSENTING:

{¶115} Respectfully, I dissent and conclude that the trial court abused its

discretion when it determined that the grant of permanent custody to CCDCFS was in

the best interest of J.B. Instead, I would award legal custody to the mother with the

agency having protective supervision.

{¶116} The majority does a thorough job of setting forth the testimony received

during the two-day trial and the relevant law and considerations; however, I must come to

a different conclusion.

{¶117} As the majority opinion recognizes, because J.B. had been in the custody of

CCDCFS for more than 12 months out of a 22-month period, the trial court had only to

conclude what was in the child’s best interest pursuant to R.C. 2151.414(D). I will

address the best interest factors in turn.

{¶118} The first factor involves the interaction and interrelationship of the child

with her parents, siblings, and other relatives and significant people in her life. R.C.
2151.414(D)(1)(a). This factor is “highly significant” and “focuses on a critical

component of the permanent custody test: whether there is a family relationship that

should be preserved.” In re A.W., 9th Dist. No. 09CA009631, 2010-Ohio-817, ¶ 14,

citing In re C.M., 9th Dist. No. 21372, 2003-Ohio-5040, ¶ 11.

{¶119} The majority of the evidence before the trial court in this case weighed in

favor of preserving the family relationship. J.B.’s mother had completed her case plan,

was bonded with her child, who called her “mommy” and verbally expressed her love for

her mother; was raising her second child without CCDCFS’s involvement; and was in the

process of securing her own housing. She attended visitation every week, was

appropriate and loving towards her child, and was alert to her child’s needs. The social

worker, GAL, and foster mother all testified that the mother had matured while the child

was in agency custody. The mother has undeniable family support, especially that of her

older sister, grandmother, and mother.

{¶120} Considering R.C. 2151.414(D)(1)(b), the GAL for J.B. reported that the

child was too young to express her wishes. The GAL for the child recommended that

custody be returned to the mother, finding that the mother had matured and would be able

to care for her daughter, he observed her acting appropriately with both of her children,

the mother took good care of her younger child, and had the assistance of her family,

including her older sister, who displayed good parenting skills.
 {¶121} Although the social worker testified that J.B. wanted to remain with the

foster parents, the wishes of a young child are expressed through the GAL, not the social

worker. See In re Smith, 9th Dist. No. 20711, 2002-Ohio-34, *16-*17 (“While the

caseworker’s testimony may be considered as evidence of the interaction and

interrelationship of the child with the foster family, it cannot be considered as an

expression of the child’s wishes in lieu of the guardian ad litem’s report. R.C.

2151.414[(D)(1)(b)] authorizes only the guardian ad litem to express the desires of the

child.”).

{¶122} Considering J.B.’s custodial history under R.C. 2151.414(D)(1)(c), the

delay in determining the permanent custody motion was unjust to all parties involved.

The agency filed for permanent custody on July 20, 2010, but the motion did not proceed

to trial until February 9 and 10, 2012. The trial court issued its ruling on June 4, 2012.

Thus, over a year and a half elapsed from the time the motion was filed until it was

granted. While I am cognizant that there was an intervening appeal filed by the foster

parents and that permanent custody proceedings take some time, a year and a half in the

life of any child, but especially a child of tender years, is too long for a permanent custody

motion to be pending.

{¶123} Considering R.C. 2151.414(D)(1)(d), and whether J.B.’s need for legally

secure permanent placement can be achieved without a grant of permanent custody, the

evidence overwhelmingly showed that the mother herself could provide a safe, stable, and
permanent home for J.B. I agree with the GAL’s recommendation, however, that

placement with the mother be accompanied by protective supervision.

{¶124} R.C. 2151.414(D)(1)(e) states that in considering the best interest of the

child, the court must consider “[w]hether any of the factors in divisions (E)(7) to (11) of

this section apply in relation to the parents and child.” The factors listed in R.C.

2151.414(E)(7) to (11) include a parent’s criminal convictions, whether the parent has

withheld medical treatment or food from the child, has placed the child at substantial risk

of harm two or more times due to alcohol or drug abuse, or abandoned the child, or

whether the parent has previously had her or his parental rights terminated as to another

child.

{¶125} There is no dispute that none of the factors in R.C. 2151.414(E)(7) to (11)

apply in this case. I cannot glean from the record that the trial court considered these

factors at all. And the fact that none of these factors apply weighs in favor of the mother

and against a grant of permanent custody. There was no evidence that the mother had

any juvenile delinquencies or adult criminal convictions, mistreated or abandoned her

child, and the mother was raising her younger child without agency intervention.

{¶126} During oral argument to this court, even the state conceded that this was a

difficult and unusual case, one in which the decision to grant permanent custody to the

agency was not clear-cut. The mother had essentially completed her case plan and the

agency gave her no further objectives to meet. The majority states that it will not
rupture the bond J.B. has with her foster family. But while the foster family has done a

commendable job of caring for young J.B. and her cousin, there is no absolute guarantee

that the foster family will adopt J.B. Although it is clear from the lower court record as

a whole that the foster family is interested in adopting J.B., when the state asked the

foster mother her intentions during trial, the court did not allow the foster mother to

answer, instead stating, “I don’t think that’s a factor [for the court] to consider.” (Tr.

22.)

{¶127} This uncertainty, however slight it may be, must be juxtaposed with the

mother’s ability to parent her child and the mother’s extensive family support. And

although J.B. has been living with the foster family for most of her short life, she knows

and loves her mother, little brother, and the rest of her family. To grant permanent

custody to the agency is to tear those bonds apart — permanently. In many cases, doing

so is the only option. But here, in a case such as this, to do so is a grievous error, one

that will have lasting detrimental impact on all involved.

{¶128} Because the mother has shown that she is presently able to parent her child,

the court should not have taken the drastic, harsh, and irrevocable step of terminating

mother’s parental rights. Simply put, to permanently cut the bonds of this mother and

her family to J.B. would not be in the child’s best interests and the state failed to show

otherwise by clear and convincing evidence.
 {¶129} For these reasons, the trial court’s decision to grant permanent custody of

the child to CCDCFS was not supported by competent, credible evidence. Accordingly,

I would conclude that the trial court abused its discretion when it determined that

permanent custody was in the best interest of the child. I would: (1) reverse the trial

court’s decision granting permanent custody to CCDCFS and (2) grant legal custody of

J.B. to the mother with protective supervision.