In re L.T.

[Cite as In re L.T., 2016-Ohio-5272.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: L.T. :
CASE NOS. CA2016-03-048
: CA2016-03-058

: OPINION
8/5/2016
:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2012-0458

Jonathan Ford and Kate Nolan, 10 Journal Square, 3rd Floor, Hamilton, Ohio 45011,
Guardian Ad Litem

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

Seth A. Cantwell, 240 East State Street, Trenton, 45067, for appellant, C.A.S.

Michael T. Gmoser, Butler County Prosecuting Attorney, Government Services Center, 315
High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Dawn Garrett, 9435 Waterstone Boulevard, Suite 140, Cincinnati, Ohio 45249, for T.N.G.

M. POWELL, P.J.

{¶ 1} Appellant, J.T. ("Father"), appeals from the judgment of the Butler County Court

of Common Pleas, Juvenile Division, awarding permanent custody of his minor child, L.T.,

and L.T.'s half-sister, N.G., to the Butler County Department of Job and Family Services ("the

Agency"). Appellant, C.S. ("C.S."), who is Father's mother, L.T.'s paternal grandmother, and
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L.T.'s and N.G.'s former temporary custodian, appeals from the same judgment, which

denied her motion for legal custody of L.T. and N.G. The appeals have been consolidated

for review. For the reasons that follow, we affirm the judgment of the juvenile court.

{¶ 2} N.G. was born in 2008 and is the child of T.G. ("Mother") and D.W.1 L.T. was

born in 2010 and is Father's biological child. Although N.G. is not Father's biological

daughter, they enjoy a father-child relationship.

{¶ 3} On September 1, 2012, the Agency removed N.G. and L.T. from Mother's home

because the home was without electricity and food and was infested with bugs, and Mother

had reported she was bi-polar and learning-disabled. The Agency filed a complaint alleging

the children were neglected and dependent. The children were placed in the temporary

custody of C.S. and began living in her home where Father was also living. On February 19,

2013, the children were adjudicated dependent after Mother and Father stipulated to the

facts in the Agency's complaint.

{¶ 4} Several case plans were adopted for the children's parents throughout the

pendency of the case. Father did not initially participate in the case plan services because

he sought to have custody granted to C.S. However, on January 7, 2014, the order granting

C.S. temporary custody of the children was terminated and the children were placed in the

temporary custody of the Agency. Subsequently, the Agency placed the children with a

foster family, where they have remained for the duration of the case. Temporary custody

with C.S. was terminated due to a series of incidents indicating that C.S.'s home was not a

safe environment. These incidents consisted of (1) N.G. sustaining a half-inch cut on her

scalp when C.S.'s other son, and Father's half-brother, J.S., threw a cigarette lighter, striking

N.G.; (2) N.G. sustaining swelling and bruising to her face and a black eye when J.S. threw a

1. Neither Mother nor D.W. appealed the juvenile court's decision awarding the Agency permanent custody of
their children and terminating their parental rights, and thus neither is a party to this appeal.

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cup that ricocheted off a wall, striking N.G.; (3) a domestic violence incident in the driveway

of C.S.'s home where C.S. was slashed on her head and hand with a knife while she was

fighting with her nephew, his girlfriend, and three other friends of the nephew, causing C.S.

wounds that required staples and stitches; (4) J.S. becoming involved in the fight and being

arrested; (5) another relative residing in the home overdosing on drugs; and (6) yet another

relative overindulging in alcoholic beverages and passing out. There were also concerns that

C.S. was abusing alcohol and her prescription medications.

{¶ 5} Relative placements were investigated and home studies were ordered on

those potential placements. However, none of the relatives who had home studies

performed on their residences moved for legal custody of N.G. and L.T.

{¶ 6} After temporary custody with C.S. was terminated and the children were placed

in foster care, Father sought custody of the children and began utilizing case plan services.

Under the case plan services, Father was required to complete a psychological evaluation

and comply with the recommendations stemming from the evaluation, complete parenting

classes, and join a father's support group if he were to obtain custody of the children. A

caseworker for the Agency assigned to the family also recommended that Father undergo

individual counseling, but Father refused, saying that he did not need it.

{¶ 7} Father visited with the children regularly and consistently and the visits went

well. Father engaged in and completed the Development of Living Skills ("DLS") parenting

program, attending 58 sessions between April 2014 and March 2015. The DLS instructor

expressed the opinion that Father was a capable parent for the children. However, the

instructor also testified she was concerned about the fact that Father did not maintain

independent housing and "relied upon other people for income at times[.]" The instructor

estimated that the percentage of time Father relied on other people for his income was

"probably in the high nineties."

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{¶ 8} At the time of the permanent custody hearing, Father was residing with C.S., as

he has for most of his life, and where he intends to remain. Shortly after the permanent

custody hearing commenced, Father became employed as a forklift operator at Menard's at

$8.85 per hour. Initially, Father was working 48 hours per week, but his hours were cut back

to 30 hours per week.

{¶ 9} The Agency moved for permanent custody of the children in September 2014

but later withdrew its motion. C.S. moved for legal custody of the children in November 2014.

Thereafter, the Agency moved for permanent custody of the children on February 9, 2015.

Hearings were held on the Agency's motion for permanent custody and C.S.'s motion for

legal custody between March 30, 2015, and July 6, 2015. During one of the hearings, Mother

testified she was no longer seeking custody of N.G. and L.T. and that she wanted legal

custody to be awarded to either Father or C.S.

{¶ 10} On September 15, 2015, the magistrate issued a decision recommending that

the Agency be awarded permanent custody of the children and that C.S.'s motion for legal

custody be denied. The magistrate determined that C.S. was not an appropriate placement

for the children because the incidents that occurred at her home while she was the children's

temporary custodian indicated she was unable to protect the children. The magistrate also

determined that Father was not an appropriate custodian for the children because he resides

in C.S.'s home and has not demonstrated a current ability to parent the children.

{¶ 11} Father and C.S. filed objections to the magistrate's decision. On February 25,

2016, the juvenile court overruled the objections and adopted the magistrate's decision as

the order of the court.

{¶ 12} Father now appeals from the judgment of the juvenile court and assigns the

following as error:

{¶ 13} Assignment of Error No. 1:
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{¶ 14} 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.

{¶ 15} Assignment of Error No. 2:

{¶ 16} THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY

PURSUANT TO R.C. 2151.414(B)(1)(d).

{¶ 17} C.S. appeals from the same judgment and assigns the following as error:

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

DISMISSING APPELLANT'S LEGAL CUSTODY MOTION WHERE THAT DECISION WAS

NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND WAS CONTRARY TO

THE MANIFEST WEIGHT OF THE EVIDENCE.

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

and custody of his or 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, 753, 102 S.Ct. 1388 (1982). "Clear and convincing

evidence" is evidence that will produce in the mind of the trier-of-fact a firm belief or

conviction as to the facts sought to be established. Cross v Ledford, 161 Ohio St. 469, 477

(1954). An appellate court's review of a juvenile court's decision granting permanent custody

is limited to considering 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 there is a sufficient conflict in the evidence

presented. Id.

{¶ 20} Pursuant to R.C. 2151.414(B)(1), a juvenile court may terminate parental rights
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and award permanent custody to a children services agency if the court makes findings

pursuant to a two-part test. 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)(1). Id. Second, the court must find that any of the following factors or

conditions 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).

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

permanent custody hearing:

[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;

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(e) Whether any of the factors in divisions (E)(7) to (11) of
this section apply in relation to the parents and child.

{¶ 22} In his first assignment of error, Father argues the juvenile court erred by

granting permanent custody of N.G. and L.T. to the Agency because the decision was not in

the children's best interest and there were "legally secure placement alternatives" to

awarding the Agency permanent custody, including reunifying the children with him or

awarding C.S. legal custody of the children. Although Father acknowledges he appealed the

juvenile court's decision only with regard to L.T., his biological child, he requests that we

consider his arguments on appeal as applying to N.G. as well, because the evidence

establishes that a close father-child relationship exists between him and N.G. even though he

is not N.G.'s biological father.

{¶ 23} Initially, as to both of Father's assignments of error, Father lacks standing with

regard to N.G. because he is not her biological father, he did not seek legal custody of N.G.,

and he has appealed only the grant of permanent custody relating to L.T. See In re J.P.,

12th Dist. Butler Nos. CA2015-08-160 and CA2015-08-161, 2016-Ohio-7, ¶ 8 (nonparent

who seeks legal custody of a child must file a motion for legal custody pursuant to R.C.

2151.353[A][3]); In the Matter of Neff, 3d Dist. Allen No. 1-78-9, 1978 WL 215720, *2 (child's

stepfather is not a party unless designated as a party by the court and thus lacked standing

to appeal permanent custody order); In re A.L.A., 11th Dist. Lake Nos. 2011-L-020 and 2011-

L-021, 2011-Ohio-3124, ¶ 2 (stepfather has no parental rights and thus lacks standing to

appeal permanent custody order). We note, however, that Father supports C.S.'s appeal of

the juvenile court's denial of her motion for legal custody of N.G. and L.T.

{¶ 24} As to the best-interest factor in R.C. 2151.414(D)(1)(a), the evidence shows

that prior to the filing of the Agency's initial complaint in September 2012, there had been a

history of allegations of abuse and neglect of the children that went as far back as shortly

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after N.G.'s birth in 2008. The allegations included instances of physical abuse, medical

neglect, and unsanitary conditions at the home.

{¶ 25} The children were in C.S.'s temporary custody from September 1, 2012, until

January 7, 2014. During that time, the children and Father lived together in C.S.'s home, and

Mother regularly visited with the children. The record shows that L.T. and N.G. are bonded

with Mother, Father, and C.S. There were a number of other relatives living in C.S.'s home

during this period, including C.S.'s other son and Father's half-brother, J.S. J.S. is

developmentally delayed and consequently receives income from Social Security.

{¶ 26} In the fall of 2013, J.S. became angry at C.S. and threw a cigarette lighter that

struck N.G. in the head, causing a half-inch cut on the child's scalp. Emergency service

personnel had to be called to treat the wound. On another occasion, J.S. threw a cup that

ricocheted off a wall and struck N.G. in the face, causing swelling in the child's face and

leaving the child with a black eye. In November 2013, the Agency recommended that J.S.

live elsewhere, but C.S. rejected the idea because if J.S. left and took his social security

income with him, the family would not be able to maintain their current residence.

{¶ 27} On January 2, 2014, one of C.S.'s nieces who was staying at C.S.'s home,

overdosed on drugs. When the family's caseworker heard about this, she came to C.S.'s

home to investigate. C.S. told her that the children had not witnessed the overdose.

However, the caseworker later learned that in the summer of 2013, another one of C.S.'s

nieces had become drunk and passed out at C.S.'s house, and that the children had

witnessed that incident. No one had ever told the caseworker about this incident prior to the

overdose incident.

{¶ 28} On January 6, 2014, one of C.S.'s nephews, who was also living at C.S.'s home

at the time, and four of his friends, one of whom was his girlfriend, attacked C.S. with a knife

in the driveway of her house. C.S. was slashed on her head and hand. J.S. came to C.S.'s

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defense and attacked the nephew with a knife, cutting the nephew's face. J.S. was arrested

and jailed. C.S.'s injuries required 12 staples to her head and stitches to her fingers. A drug

screen was performed on C.S., and she tested positive for benzodiazepine and oxycodone.

The children were removed immediately after this incident.

{¶ 29} The Agency was concerned that C.S. was abusing her prescription

medications. When the caseworker asked C.S. for permission to do a pill count of C.S.'s

medications, C.S. refused, telling the caseworker that she had flushed all of her medications

down the toilet three days earlier. During the permanent and legal custody hearing, C.S.

testified that she is prescribed Xanax and Percocet and that she drank alcohol over New

Year's Weekend. When C.S. was asked by her attorney if her positive drug test was the

result of her prescription medication or alcohol, C.S. answered that she did not know.

{¶ 30} After the children were removed from C.S.'s residence, Father and Mother

visited the children at the Agency's visitation facility, where they also received family

counseling. The visits and counseling took place under the supervision of the Children's

Diagnostic Center ("CDC"). During the visits, the children were happy to see Father and

Father demonstrated he was bonded to the children. Father visited the children regularly and

was focused on the children during the visits. Additionally, the parenting skills of both Mother

and Father reportedly improved after they engaged in parenting education.

{¶ 31} However, the CDC supervisor noted that Father had difficulty in handling both

children at the same time and that when Father and Mother were visiting the children

together, they did not work well as co-parents as Mother tended to control the visit and

Father acquiesced. The CDC supervisor also noted that Father had difficulty implementing

appropriate consequences for bad behavior. For example, Father did not understand the

inappropriateness of putting hot sauce or soap in the children's mouths as a punishment

when the children misbehaved, and the supervisor believed that Father would continue to

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need help in properly parenting the children.

{¶ 32} Lastly, the record shows that N.G. and L.T. are bonded to each other, and all

parties agree that it is in the children's best interests that they remain together.

{¶ 33} As to the best-interest factor in R.C. 2151.414(D)(1)(b), the magistrate noted

that the juvenile court did not interview the children, but that the children's guardian ad litem

recommended that the Agency be granted permanent custody of the children. In his report,

the guardian ad litem stated he did not interview L.T., who was five years old at the time of

the permanent custody proceedings, due to her age. However, the guardian ad litem did

interview N.G. and reported that N.G. did not want to return to C.S.'s home. The magistrate

noted in his decision that all parties waived their right to cross-examine the guardian ad litem.

{¶ 34} As to the factor in R.C. 2151.414(D)(1)(c), the magistrate determined that for

purposes of R.C. 2151.414(D)(1), the children have been in the temporary custody of the

Agency since November 1, 2012, which date was 60 days after their removal from Mother's

home on September 1, 2012. Therefore, the magistrate determined the children had been

out of their parents' custody for almost two and one-half years at the time of the

commencement of the permanent custody hearing, and thus, the children had been in the

temporary custody of the agency for 12 months of a consecutive 22-month period

immediately prior to the Agency filing its motion for permanent custody.

{¶ 35} As to the factor in R.C. 2151.414(D)(1)(d), there is clear and convincing

evidence to support the juvenile court's determination that the children are in need of a

legally secure placement and that such a placement cannot be achieved without granting the

Agency permanent custody. The record shows that the children had been out of their

Mother's home for approximately two and one-half years on the date the permanent custody

hearing commenced. N.G.'s therapist testified that N.G. is experiencing a lot of anxiety as a

result of being in foster care. The therapist explained that N.G.'s problem with foster care is

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"[n]ot that she doesn't like it, but she's not real sure what's going to happen next."

{¶ 36} There is also clear and convincing evidence to support the juvenile court's

determinations that neither C.S. nor Father are appropriate placements for the children. The

incidents at C.S.'s home which led to the children's removal from that home show that C.S. is

unable to protect the children, because she has a history of allowing several relatives into her

home who have caused problems, including her nephew and her two nieces as detailed

above. There are also troubling indications that C.S. may have a substance abuse problem

with alcohol or prescription drugs. These same problems show that Father is also not an

appropriate placement for the children as Father resides with C.S.

{¶ 37} Father argues that in considering the "legally secure permanent placement"

factor in R.C. 2151.414(D)(1)(d), a juvenile court is not permitted to choose "the best option"

for the child, but instead, "must specifically determine that granting permanent custody is the

only way the child's need for such [legally secure] placement can be achieved." In support

of his argument, Father cites this court's decision in In re G.N., 170 Ohio App.3d 76, 2007-

Ohio-126 (12th Dist.), where we stated that a "juvenile court must specifically determine that

granting permanent custody is the only way the child's need for such [a legally secure]

placement can be achieved." (Emphasis added.) Id. at ¶ 19. However, this court has

overruled the language in In re G.N. on which Father relies, based on authority from the Ohio

Supreme Court. See In re J.L.M., 12th Dist. Butler Nos. CA2015-11-206, CA2015-12-209

through -211, 2016-Ohio-2773, ¶ 37, citing In re M.M., 122 Ohio St.3d 541, 2009-Ohio-4048;

and In re H.P., 12th Dist. Preble No. CA2010-07-010, 2011-Ohio-1148.

{¶ 38} Father contends that he completed all of the requirements of his case plan, and

points out that a DLS therapist testified she believes Father has the ability to parent the

children independently provided he has the financial resources to do so. However, a case

plan is a means to an end, and not an end itself. In re A.R., 12th Dist. Butler No. CA2015-08-
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143, 2016-Ohio-4919, ¶ 18. Additionally, Father refused to follow the caseworker's advice to

engage in independent counseling because he believed he did not need such counseling.

Moreover, the evidence as to Father's ability and commitment to parent the children and

provide for them is somewhat contradictory.

{¶ 39} Father began engaging in case plan services in earnest only when the

children's temporary custody placement with C.S. was terminated in January 2014. Prior to

that time, Father appeared content to forfeit any right he had to the children's custody and

allow C.S. to have custody of the children. After the children were placed in the temporary

custody of the Agency, Father certainly has demonstrated some competence in his ability to

parent L.T, but problems remain, such as his over-dependence on others for help and his

failure to grasp appropriate disciplinary strategies.

{¶ 40} Furthermore, the evidence as to Father's financial stability is equivocal. For

instance, while the evidence shows that Father is currently employed on a nearly full-time

basis earning $8.85 per hour as a forklift operator at Menard's, Father did not obtain this job

until April 17, 2015, which was shortly after the permanent custody hearing commenced.

Historically, Father has not maintained a stable and independent income, but rather has

depended upon others. Although Father's recent employment is a positive development, it

must be weighed with some caution based upon Father's historical record of lacking financial

stability and independence.

{¶ 41} However, Father's parenting ability is not the only concern. A paramount

concern is that Father resides with C.S. and has expressed his intention to continue to reside

with her despite abundant evidence that her home is not appropriate for children. This

caused the juvenile court to conclude, correctly, that Father lacked independent, stable

housing.

{¶ 42} There was never a home study approving C.S.'s and Father's current home. Of

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great significance to this case is the fact that C.S. and Father restricted the Agency's access

to their new home in the months immediately prior to the commencement of the permanent

custody hearing. By the time the permanent custody hearing commenced on March 30,

2015, the caseworker had not been permitted to visit C.S.'s and Father's current residence

since January 2015. C.S.'s previous home was identified in January 2014 as one that was

not a safe environment for the children due to the drug use and violence present in the home.

C.S. had been advised to move J.S. elsewhere in November 2013, but C.S. refused to do so

because she was concerned about losing access to J.S.'s social security income. After the

events in January 2014 that led to the termination of C.S.'s temporary custody of the children,

C.S. was again advised by the Agency to make arrangements for J.S. to live elsewhere and

to not permit J.S. to have any contact with the children. As indicated earlier, the Agency

refused to do a new home study on C.S.'s home in August 2014 because J.S. was still living

there. C.S. moved J.S. to a house across the street. However, after Father and Mother

moved into that house to attempt a reconciliation, J.S. went back to C.S.’s house in

December 2014 and lived there until March 10, 2015, less than three weeks before the first

day of the permanent custody hearing.

{¶ 43} During the hearing, Father acknowledged that it was very important for the

Agency to examine his and C.S.'s home where he intended to live with the children if he were

to be granted custody. Father was then questioned as to why he continually refused to meet

with workers from the Agency at this residence. Father essentially said that his work

schedule would not allow it. When Father was asked if the Agency could inspect his current

residence that day, Father again said his work schedule would not allow it. When Father was

asked if C.S. could be at their current residence for an inspection, Father said that C.S.

would not be able to meet with them either because of her work schedule. Father was

unable to explain how he was able to find the time to meet with these same workers at places

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like the public library but not find the time to meet with them at his current residence. Given

that J.S. has historically resided with C.S. and that C.S. has expressed a financial incentive

to permit J.S. to reside with her, in conjunction with Father's knowledge that J.S. and certain

other persons were not permitted in his residence if he wanted to obtain custody of N.G. and

L.T., and Father's repeated and consistent refusal to allow the Agency to inspect his current

residence, there is a strong inference that Father is hiding something.

{¶ 44} Because Father was insistent on remaining in C.S.'s home, he failed to provide

a stable home for L.T. and therefore it was not appropriate to place L.T. with Father. Since

the children have been in custodial limbo since September 2012, it was necessary to resolve

any issue as to their ultimate placement expeditiously. Therefore, consideration of the best

interest factor in R.C. 2151.414(D)(1)(d) that requires a court to consider "[t]he 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" weighs heavily in favor of

granting the Agency permanent custody, because the evidence clearly and convincingly

shows that L.T. is in great need of a legally secure placement and that placement cannot be

achieved without granting the Agency permanent custody.

{¶ 45} Finally, as to the best-interest factor in R.C. 2151.414(D)(1)(e) that requires a

court to consider whether any of the factors in R.C. 2151.414(E)(7) to (11) apply in relation to

the parents and child, the magistrate found there was no evidence that any of these factor

apply in this case.

{¶ 46} A review of all the evidence in the record shows there was clear and convincing

evidence presented to support the juvenile court's determination that granting the Agency

permanent custody was in the children's best interest. Therefore, Father's first assignment of

error is overruled.

{¶ 47} In his second assignment of error, Father contends the juvenile court erred by

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finding that the children had been in the Agency's temporary custody for more than 12

months of a consecutive 22-month period by the date the Agency filed its motion for

permanent custody, and therefore the juvenile court lacked jurisdiction to award the Agency

permanent custody pursuant to R.C. 2151.414(B)(1)(d).

{¶ 48} As we indicated earlier, R.C. 2151.414(B)(1) allows a juvenile court to award a

public children services agency permanent custody if the court finds that granting the agency

permanent custody is in the child's best interest and that at least one of the five factors or

conditions in R.C. 2151.414(B)(1)(a)-(e) applies, including the so-called "12 of 22" rule set

forth in R.C. 2151.414(B)(1)(d), i.e., the child has been in the agency's temporary custody for

at least 12 months of a consecutive 22-month period. "A juvenile court lacks authority to

grant an agency's motion on R.C. 2151.414(B)(1)(d) grounds if those grounds were not

satisfied when the motion was filed." In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, ¶ 24.

{¶ 49} Here, Father acknowledges that, at first glance, the facts of this case seemingly

show that the Agency complied with the 12 of 22 rule, as N.G. and L.T. were removed from

C.S.'s temporary custody on January 7, 2014, and placed in the Agency's temporary custody

at that time, and the Agency waited to file its motion for permanent custody more than 12

months later on February 9, 2015. Father contends, however, that a "plain reading" of R.C.

2151.414(B)(1) requires that the children not be considered to have entered the Agency's

temporary custody until March 8, 2014, that is, 60 days after they were removed from C.S.'s

home on January 7, 2014. Consequently, Father argues that by moving for permanent

custody on February 9, 2015, the Agency filed its motion too soon to permit the Agency to

claim that the children had been in the Agency's custody for at least 12 months of a

consecutive 22-month period. We find Father's argument unpersuasive.

{¶ 50} Initially, Father did not raise a specific objection to the magistrate's decision on

this ground, as required by Juv.R. 40(D)(3)(b)(ii), and thus has procedurally defaulted on this
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claim except for a claim of plain error. Juv.R. 40(D)(3)(b)(iv). However, the juvenile court did

not commit any error, plain or otherwise, in determining that the children had been in the

Agency's temporary custody for more than 12 months of a consecutive 22-month period, for

purposes of R.C. 2151.414(B)(1)(d), by the time the Agency moved for permanent custody.

{¶ 51} The last sentence of R.C. 2151.414(B)(1) states that "[f]or purposes of division

(B)(1) of this section, a child shall be considered to have entered the temporary custody of an

agency on the earlier of the date the child is adjudicated pursuant to [R.C.] 2151.28 or the

date that is sixty days after the removal of the child from home."

{¶ 52} Father contends the children were removed "from home" for purposes of R.C.

2151.414(B)(1), when they were removed from C.S.'s home on January 7, 2014. However,

this is incorrect. The termination of the order placing the children in the temporary custody of

C.S. is not a "removal from home." This is apparent from the definition of "temporary

custody" under R.C. 2151.011(B)(56), which provides

"Temporary custody" means legal custody of a child who is
removed from the child's home, which custody may be
terminated at any time at the discretion of the court or, if the legal
custody is granted in an agreement for temporary custody, by the
person who executed the agreement.

(Emphasis added.)

{¶ 53} By definition, temporary custody includes the concept that a child has already

been removed from the "child's home." Termination of a relative's temporary custody of a

child is not a removal of the child from the "child's home."

{¶ 54} R.C. 2151.414(B)(1) explicitly states that "a child shall be considered to have

entered the temporary custody of an agency on the earlier of the date the child is adjudicated

pursuant to [R.C] 2151.28 or the date that is sixty days after the removal of the child from

home." (Emphasis added.) The statute does not require that a child be in the temporary

custody of an agency as a matter of fact, but rather provides for when a child shall "be
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considered to have entered the temporary custody of an agency" for purposes of applying the

12 of 22 rule. In other words, pursuant to the last sentence of R.C. R.C. 2151.414(B)(1), it

makes no difference whether a child is placed in the temporary custody of an agency, a

relative, or a third-party for purposes of applying the 12 of 22 rule.

{¶ 55} The children were actually removed "from home" on September 1, 2012, when

they were removed from Mother's home and placed in the temporary custody of C.S. The

children were adjudicated dependent, pursuant to R.C. 2151.28, on February 19, 2013.

Therefore, under R.C. 2151.414(B)(1), the children must "be considered to have entered" the

Agency's temporary custody on November 1, 2012, which was 60 days after their September

1, 2012 removal from Mother's home, and is earlier than the date they were adjudicated

dependent (February 19, 2013).

{¶ 56} Furthermore, even if we assume, for the sake of argument, that the children

were removed "from home" on January 7, 2014, Father's argument still cannot prevail. For

purposes of R.C. 2151.414(B)(1), the children were adjudicated dependent on February 19,

2013, which is earlier than March 8, 2014, the date 60 days after the children were removed

from C.S.'s home on January 7, 2014. The children were in the temporary custody of the

Agency, as a matter of fact, for 12 or more months of a consecutive 22-month period after

the date they were adjudicated dependent.

{¶ 57} Given the foregoing, the juvenile court did not err by finding that the children

have been in the Agency's temporary custody for more than 12 months of a consecutive 22-

month period, for purposes of R.C. 2151.414(B)(1)(d). Consequently, Father's second

assignment of error is overruled.

{¶ 58} In her assignment of error, C.S. argues the juvenile court erred by awarding the

Agency permanent custody and dismissing her motion for legal custody of the children.

Specifically, she asserts the juvenile court erred by failing to properly apply the best-interest

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factor in R.C. 2151.414(D)(1)(d) regarding a child's need for a "legally secure permanent

placement" and whether such a placement can be achieved without granting the Agency

permanent custody of the child. C.S. contends that granting her legal custody of the children

was an acceptable alternative to awarding the Agency permanent custody of the children,

and therefore the juvenile court's decision to award the Agency permanent custody was not

supported by clear and convincing evidence and was contrary to the manifest weight of the

evidence.

{¶ 59} "R.C. 2151.353(A)(3) provides that if a child is adjudicated a dependent child,

the court may award legal custody of the child 'to either parent or to any other person who,

prior to the dispositional hearing, files a motion requesting legal custody of the child[.]'" In re

A.R., 2016-Ohio-4919 at ¶ 13, quoting R.C. 2151.353(A)(3). "Legal custody vests in the

custodian the physical care and control of the child while residual parental rights and

responsibilities remain intact[,]" and "[u]nlike permanent custody, granting legal custody does

not terminate the parent-child relationship." In re M.M., 12th Dist. Fayette No. CA2010-12-

034, 2011-Ohio-3913, ¶ 7; R.C. 2151.011(B)(19). A juvenile court "may award legal custody

to a nonparent upon a demonstration by a preponderance of the evidence that granting legal

custody to the nonparent is in the child's best interest." In re C.A., 12th Dist. Butler No.

CA2014-07-165, 2015-Ohio-1410, ¶ 13.

{¶ 60} A juvenile court must base its custody determination under R.C. 2151.353 on

the best interest of the child. Id. at ¶ 14. In determining the best interest of the child, R.C.

3109.04(F)(1) requires the juvenile court to consider all relevant factors, including, but not

limited to, any applicable factors in R.C. 3109.04(F). Id.

{¶ 61} An appellate court reviews a juvenile court's custody determination under an

abuse-of-discretion standard. In re C.A., 2015-Ohio-1410 at ¶ 15. A juvenile court abuses its

discretion when it acts unreasonably, arbitrarily, or unconscionably. Blakemore v.
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Blakemore, 5 Ohio St.3d 217, 219 (1983). The juvenile court's exercise of its discretion in

custody matters is entitled to 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 C.A. at

¶ 15. Thus, an appellate court will afford deference to the juvenile court's findings regarding

the credibility of the witnesses. Id.

{¶ 62} In considering a claim that the juvenile court's decision is contrary to the

manifest weight of the evidence, "a reviewing court must determine whether the finder of fact,

in resolving conflicts in the evidence, clearly lost his way and created such a manifest

miscarriage of justice that the judgment must be reversed and a new trial ordered." In re

X.B., 12th Dist. Butler No. CA2014-07-168, 2015-Ohio-1174, ¶ 21. The reviewing court is

guided by the presumption that the juvenile court's findings are correct. Id. Thus, where an

award of custody is supported by a substantial amount of credible and competent evidence,

the reviewing court will not reverse the juvenile court’s custody determination on the grounds

that it is contrary to the manifest weight of the evidence. Id.

{¶ 63} As indicated above, C.S.'s home was not an appropriate placement for the

children and C.S. was not an appropriate custodian of the children, since there was clear and

convincing evidence she was unable to protect them. C.S.'s home was identified in January

2014 as one that was not a safe environment due to the drug use and violence that occurred

at the home, and as a result, the children were removed from C.S.'s home at that time.

There is no evidence that the conditions that led to the children's removal from C.S.'s home

in January 2014 have changed. There was never a home study performed approving C.S.'s

current residence, and C.S. and Father restricted the Agency access to the home in the

months immediately prior to the commencement of the permanent custody hearing.

{¶ 64} Further, C.S. and Father were both unable to provide a plausible explanation as

to why they refused to allow the Agency to inspect their current residence. While C.S asserts
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that she will not allow J.S. to return to her new residence, it is clear that the juvenile court

simply did not believe her, and there is clear and convincing evidence to support the juvenile

court's refusal to believe her on this matter. C.S. has a strong, emotional connection to J.S.

as well as significant financial reasons for not wanting to bar J.S. from her home, namely, to

maintain access to J.S.'s social security income.

{¶ 65} In light of the foregoing, C.S.'s assignment of error is overruled.

{¶ 66} Judgment affirmed.

S. POWELL and PIPER, JJ., concur.

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