In re K.W.

[Cite as In re K.W., 2015-Ohio-4315.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN THE MATTER OF: :
CASE NO. CA2015-06-124
K.W. :
OPINION
: 10/19/2015

:

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2013-0083

Kate Nolan and Jonathan Ford, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011,
guardian ad litem

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for appellant

Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee, Butler
County Job & Family Services

S. POWELL, P.J.

{¶ 1} Appellant, the mother of K.W., appeals a decision of the Butler County Court of

Common Pleas, Juvenile Division, granting permanent custody of K.W. to appellee, the

Butler County Department of Job and Family Services (BCDJFS). For the reasons detailed

below, we affirm.
 Butler CA2015-06-124

{¶ 2} On February 8, 2013, BCDJFS filed a neglect and dependency complaint and

requested temporary custody of K.W., who was nine years old. The complaint alleged that

BCDJFS had received an emergency referral with concerns of neglect against K.W.,

including allegations that the family was homeless, basic needs were not being met, and

appellant had been abusing illegal drugs. Specifically, the referral indicated that appellant

would leave K.W. "here and there" while she would go out to abuse drugs. In addition, the

referral alleged that appellant had been staying at the Hope House, but was presently "at

large," and K.W. was not enrolled in school. During an interview with BCDJFS, appellant

admitted to abusing heroin and reported that she had no stable housing or means to care for

K.W. As a result, K.W. was removed from appellant's custody and placed in foster care.

{¶ 3} Over the next several months, appellant failed to participate in these

proceedings and did not visit K.W. Following the dispositional hearing, which appellant also

failed to attend, the juvenile court found K.W. was both neglected and dependent. BCDJFS

developed a case plan for appellant with a list of objectives, including: complete a drug and

alcohol assessment, participate in intensive outpatient treatment while awaiting placement in

a residential treatment facility for drug abuse, and obtain and maintain housing and financial

means to care for K.W.

{¶ 4} The record reflects that appellant did initially participate in substance abuse

assessments and attend a treatment facility. However, appellant was unable to successfully

complete any drug program. Shortly after beginning an intensive outpatient treatment

program, appellant was terminated from the program for violating the facility's rules. In

addition, appellant failed to report to a residential treatment facility when the appropriate

placement became available. Furthermore, throughout these proceedings, appellant

provided multiple drug screens that tested positive for marijuana and opiates.

{¶ 5} On July, 24, 2013, appellant made her first court appearance and the juvenile
-2-
 Butler CA2015-06-124

court appointed counsel. Thereafter, appellant was provided with a visitation schedule for

K.W. The record reflects that appellant visited K.W. four times before those visits were

suspended because appellant failed to maintain contact with the agency or attend court

proceedings. Appellant appeared at a subsequent review hearing and was able to resume

visitation with K.W., but her court attendance, participation in the case plan, and visitation

with K.W. remained sporadic.

{¶ 6} On May 16, 2014, BCDJFS filed a motion for permanent custody. At the

permanent custody hearing, appellant admitted to drug abuse, not enrolling K.W. in school,

and not following the recommendations contained in the case plan. In addition, appellant

acknowledged that she had only visited K.W. six times during the pendency of these

proceedings and had failed to attend many of her court appointments. Although appellant

had obtained a residence at the time of the permanent custody hearing, appellant stated that

she was not currently ready for K.W. to come home, but stated "I think in another six months

I could have everything."

{¶ 7} In support of the grant of permanent custody, BCDJFS introduced the testimony

of the BCDJFS caseworker responsible for this matter. The caseworker testified that K.W.

was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Reactive Attachment

Disorder (RAD), which makes it difficult for K.W. to form attachments and bonds to other

people. The caseworker explained that in order to help K.W. alleviate her behavioral issues,

she "needs a very structured environment. She needs a very stable environment. She

needs rules. She needs to know what the expectations are as far as her behavior."

Throughout the pendency of these proceedings, the caseworker stated that K.W. has shown

some progress in the treatment of her behavioral issues and her current foster parents

appear committed to working through the process. Furthermore, with respect to appellant,

the caseworker testified that appellant had only visited K.W. a total of six times since
-3-
 Butler CA2015-06-124

BCDJFS obtained temporary custody. In addition, the caseworker stated that appellant failed

to successfully complete any substance abuse or mental health treatment.

{¶ 8} On April 13, 2015, a juvenile court magistrate granted the motion for permanent

custody. Appellant then filed objections to the magistrate's decision, which were overruled.

Appellant now appeals the juvenile court's decision granting permanent custody of K.W. to

BCDJFS, raising one assignment of error for review.

{¶ 9} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY AND

TERMINATING APPELLANT'S PARENTAL RIGHTS WHERE THAT DECISION WAS NOT

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS CONTRARY TO THE

MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 10} In her sole assignment of error, appellant argues the juvenile court's decision

granting permanent custody of K.W. to BCDJFS was not in K.W.'s best interest. In support

of her claim, appellant alleges the juvenile court's decision was not supported by sufficient

clear and convincing evidence and was otherwise against the manifest weight of the

evidence. After a thorough review of the record, we find appellant's assignment of error is

without merit.

{¶ 11} Before a natural parent's constitutionally protected liberty interest in the care

and custody of her child may be terminated, the state is required to prove by clear and

convincing evidence that the statutory standards for permanent custody have been met.

Santosky v. Kramer, 455 U.S. 745, 759, 102 S.Ct. 1388 (1982). An appellate court's review

of a juvenile court's decision granting permanent custody is limited to whether sufficient

credible evidence exists to support the juvenile court's determination. In re M.B., 12th Dist.

Butler Nos. CA2014-06-130 and CA2014-06-131, 2014-Ohio-5009, ¶ 6. A reviewing court

will reverse a finding by the juvenile court that the evidence was clear and convincing only if

-4-
 Butler CA2015-06-124

there is a sufficient conflict in the evidence presented. Id.

{¶ 12} Pursuant to R.C. 2151.414(B)(1), a court may terminate parental rights and

award permanent custody to a children services agency if it makes findings pursuant to a

two-part test. In re G.F., 12th Dist. Butler No. CA2013-12-248, 2014-Ohio-2580, ¶ 9. First,

the court must find that the grant of permanent custody to the agency is in the best interest of

the child, utilizing, in part, the factors of R.C. 2151.414(D). In re D.K.W., 12th Dist. Clinton

No. CA2014-02-001, 2014-Ohio-2896, ¶ 21. Second, the court must find that any of the

following apply: (1) the child is abandoned; (2) the child is orphaned; (3) the child has been in

the temporary custody of the agency for at least 12 months of a consecutive 22–month

period; (4) where the preceding three factors do not apply, the child cannot be placed with

either parent within a reasonable time or should not be placed with either parent; or (5) the

child or another child in the custody of the parent from whose custody the child has been

removed, has been adjudicated an abused, neglected, or dependent child on three separate

occasions. R.C. 2151.414(B)(1)(a)-(e); In re C.B., 12th Dist. Clermont No. CA2015-04-033,

2015-Ohio-3709, ¶ 10. Only one of those findings must be met for the second prong of the

permanent custody test to be satisfied. In re A.W., 12th Dist. Fayette No. CA2014-03-005,

2014-Ohio-3188, ¶ 12

{¶ 13} In this case, the juvenile court found by clear and convincing evidence that

K.W. had been in the temporary custody of BCDJFS for more than 12 months of a

consecutive 22-month period as of the date the agency filed for permanent custody.

Appellant does not dispute this finding. Rather, appellant contests the juvenile court's finding

that granting permanent custody of K.W. to BCDJFS was in her best interest.

{¶ 14} R.C. 2151.414(D)(1) provides that in considering the best interest of a child in a

permanent custody hearing:

-5-
 Butler CA2015-06-124

[T]he court shall 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.

{¶ 15} In granting the motion for permanent custody, the juvenile court considered

each of the best interest factors in light of the evidence presented at the hearing. With

respect to R.C. 2151.414(D)(1)(a), the juvenile court found that K.W. has no relationship with

her father and her relationship with appellant has been compromised significantly because

appellant has not regularly visited K.W. during the 20 months these proceedings were

ongoing. The juvenile court also found that K.W. and appellant had been homeless before

the initiation of this case and the last time they maintained a permanent residence was in

2011. Since the initiation of this case, K.W. has been placed with two foster homes and has

resided in her current foster home for over a year. The court further found that K.W. has

been diagnosed with RAD, which makes it more difficult for her to form attachments with

others. Although K.W. has struggled in some respects with her foster placement, she

appears to be comfortable there and her current foster parents have been active in seeking

support and treatment.
-6-
 Butler CA2015-06-124

{¶ 16} In its consideration of R.C. 2151.414(D)(1)(b), the juvenile court indicated that it

conducted an in camera review where K.W. expressed her wishes and desires. The juvenile

court found K.W. has the maturity to assist the court in making that determination, but the

remainder of that discussion was not set forth in the decision.

{¶ 17} With respect to R.C. 2151.414(D)(1)(c), the juvenile court reviewed the

custodial history of K.W. The court found K.W. was adjudicated a neglected and dependent

child in March 2013 and had been in agency custody for 14 months before the agency

moved for permanent custody.

{¶ 18} In considering R.C. 2151.414(D)(1)(d), the juvenile court found K.W. is in need

of a legally secure placement, the agency can provide the necessary legally secure

placement, and such placement is the only way K.W.'s needs can be achieved. The juvenile

court indicated that no appropriate relatives have come forward as placement options for

K.W. Appellant, who has a long history of residential instability and substance abuse issues,

has repeatedly failed to participate successfully in substance abuse treatment or individual

counseling. In addition, the juvenile court noted that appellant, until recently, did not have a

residence. Although appellant has recently received a prescription for Vivitrol to assist with

her heroin addiction and has obtained housing through a transitional living program, the

juvenile court noted that she was vague about the requirements that she has to meet to

continue her residence in that program. The court also found that K.W. has been in foster

care for a substantial period of time and has been receiving appropriate care in that

placement.

{¶ 19} Finally, with respect to R.C. 2151.414(D)(1)(e), the juvenile court found that

K.W.'s father has not had any contact with her while this case has been pending and,

therefore, has abandoned her as a matter of law.

{¶ 20} Based on these findings, the juvenile court found by clear and convincing
-7-
 Butler CA2015-06-124

evidence that it was in K.W.'s best interest to grant permanent custody to BCDJFS. On

appeal, appellant disputes the juvenile court's findings and argues that she should retain

custody of the child because she has recently taken steps to secure appropriate housing and

has requested additional time to complete substance abuse treatment. Furthermore,

because of K.W.'s history of behavioral problems and diagnosis with RAD, appellant claims

that there is no indication that K.W. will be adopted into a loving home. As a result, appellant

claims she should be provided additional time to correct her substance abuse issues and

move towards reunification because of her close bond and attachment to K.W.

{¶ 21} We have carefully and thoroughly reviewed the evidence in this case and find

that the juvenile court's determination regarding the best interest of K.W. is supported by

clear and convincing evidence and was not against the manifest weight of the evidence. At

the time of the permanent custody hearing, K.W. had been in the custody of the agency for

more than 20 months. While appellant maintained that she can provide stable housing and a

loving environment in "another six months," we find the present situation is appropriate for a

grant of permanent custody to BCDJFS. Throughout these proceedings, appellant has

missed court hearings, skipped visitation sessions, and has not taken appropriate measures

in her substance abuse treatment. Although appellant requests additional time to complete

the steps necessary for reunification, appellant has already been provided with ample

opportunity to take these corrective steps and has been unwilling to take those measures

prior to the agency's filing for permanent custody. While in foster care, K.W. has been

provided with a stable and comfortable environment and her foster family has been active in

seeking the necessary support and treatment for K.W.'s behavioral issues. In light of the

foregoing, we find the juvenile court's decision was not against the manifest weight of the

evidence and find no error in the juvenile court's decision to grant permanent custody of K.W.

to BCDJFS. Appellant's sole assignment of error is overruled.
-8-
 Butler CA2015-06-124

{¶ 22} Judgment affirmed.

RINGLAND and HENDRICKSON, JJ., concur.

-9-