In re AsF(F)

[Cite as In re AsF(F), 2016-Ohio-7836.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

MADISON COUNTY

IN THE MATTER OF: AsF(F) :
CASE NOS. CA2016-05-020
: CA2016-05-021

: OPINION
11/21/2016
:

:

APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 21430006

Ashli N. Stonerock, 8 East Main Street, West Jefferson, Ohio 43162, Guardian Ad Litem

Shannon M. Treynor, 63 North Main Street, P.O. Box 735, London, Ohio 43140, for
appellant, M.C.

J. Michael Murray, 8 East Main Street, West Jefferson, Ohio 43162, for appellant, J.F.

Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for appellee

M. POWELL, P.J.

{¶ 1} Appellants, the biological parents of As.F. ("Mother" and "Father"), both appeal

a decision of the Madison County Court of Common Pleas, Juvenile Division, granting

permanent custody of As.F. to appellee, Madison County Department of Jobs & Family
 Madison CA2016-05-020
CA2016-05-021

Services ("MCDJFS").1

{¶ 2} As.F. was born on January 30, 2014, testing positive for opiates. As a

consequence, a voluntary case plan was initiated with Mother and Father on January 31,

2014 to insure and monitor As.F.'s well-being. On September, 15, 2014, the caseworker filed

a dependency complaint for As.F. and requested an ex parte emergency order for temporary

custody. The complaint alleged Mother had been noncompliant with MCDJFS, including a

period where Mother and As.F.'s whereabouts became unknown until Mother's arrest on

September 5, 2014. During Mother's incarceration, she left As.F. in the care of Father.

However, she was unable to provide the caseworker with Father's address. The complaint

further alleged that Father had also been substantially noncompliant with MCDJFS and

submitted a drug screen positive for cocaine, opiates, and benzodiazepines. Based on the

foregoing, on September 26, 2014, the juvenile court held a shelter care hearing. The

juvenile court found probable cause that As.F. was in immediate danger from the

surroundings and that removal was necessary to prevent immediate or threatened physical or

emotional harm. Based on this finding, the juvenile court issued an ex parte emergency

order pursuant to R.C. 2151.31(D) authorizing MCDJFS to take immediate custody of As.F.

{¶ 3} Furthermore, MCDJFS implemented case plans for both Mother and Father,

which began on November 25, 2014. Their case plans included a permanency goal for

reunification of As.F. with Mother and Father and required the parents to obtain stable

housing and employment, engage in mental health and drug treatment, and submit to

random drug screenings. Following a series of hearings and continuances, on March 18,

2015, the juvenile court adjudicated As.F. a dependent child. In so doing, the juvenile court

1. We note that Mother and Father filed a joint notice of appeal; however, only Mother filed a brief and assigned
error to the juvenile court's decision.
-2-
 Madison CA2016-05-020
CA2016-05-021

found that returning As.F. to Mother and Father's home was not in the child's best interest

and welfare. The juvenile court further found that As.F.'s removal was during an emergency

in which the child could not safely remain at the home and that MCDJFS had made

reasonable efforts to prevent As.F.'s removal, to eliminate As.F.'s continued removal, and to

make it possible for As.F. to return home.

{¶ 4} On December 1, 2015, MCDJFS moved for permanent custody. In support of

permanent custody, MCDJFS introduced the testimony of the caseworker, who testified that

throughout the pendency of MCDJFS's temporary custody of As.F., both parents failed to

make any meaningful progress in completing their case plans for reunification. The

caseworker noted Mother's single unsuccessful attempt at completing a drug treatment

program, the parents' repeated and consistent noncompliance with other prescribed case

plan services, sporadic communication between the agency and parents, including a period

of several months with no communication, and the parents missing an overwhelming majority

of their scheduled visits with As.F.

{¶ 5} In addition to these concerns, both parents continued to abuse drugs evidenced

by failed drug screenings, and both parents' failed to complete a mental health assessment.

Mother failed to secure employment and Father worked sporadically. The caseworker was

unable to confirm that the parents had obtained stable housing because she was never

afforded the opportunity to enter their current residence. Moreover, both parents' case plans

provided for weekly visitation with As.F., but as of March 2015, Mother had attended only 6 of

58 visits and Father had attended only 12 of 79 visits.

{¶ 6} As.F.'s guardian ad litem ("GAL") testified at the permanent custody hearing,

and recommended permanent custody be granted in favor of MCDJFS. The GAL testified

that both parents displayed affection for As.F. and engaged in parent-child activities during

-3-
 Madison CA2016-05-020
CA2016-05-021

visits, such as reading a book and playing together. However, the GAL expressed concerns

about the inconsistency of the parents visits, which resulted in As.F. not being completely

comfortable around the parents during the visits.

{¶ 7} Next, Mother testified on her own behalf. Mother stated she believes As.F. has

begun to bond with her as she has tried to recently complete more visits. Mother stated that

As.F. had once referred to her as "mommy." However, Mother also admitted she struggles

with drug addiction, but had been sober for one month at the time of the hearing and had

recently begun counseling for her addiction. Mother stated she had lived at her current

residence with Father for approximately five to six months and believed it to be a stable

residence. Mother acknowledged she had yet to take steps to complete the mental health

assessment in her case plan.

{¶ 8} After taking the matter under advisement, the juvenile court granted the motion

for permanent custody. The juvenile court concluded that As.F. had been in the temporary

custody of MCDJFS for 12 or more months of a consecutive 22-month period and that

placing As.F. in the permanent custody of MCDJFS was in the child's best interest. Mother

now appeals the decision of the juvenile court, raising one assignment of error for review.

{¶ 9} Assignment of Error No. 1:

{¶ 10} THE EVIDENCE PRESENTED DOES NOT RISE TO A LEVEL OF THE

"CLEAR AND CONVINCING" STANDARD OF PROOF WITH REGARD TO TERMINATION

OF PARENTAL RIGHTS.

{¶ 11} Mother's assignment of error that the termination of her parental rights for As.F.

was not supported by clear and convincing evidence is not based upon any claim that the

statutory requisites for granting permanent custody were not satisfied. Mother does not

contest the juvenile court's determination that As.F. had been in the temporary custody of

-4-
 Madison CA2016-05-020
CA2016-05-021

MCDJFS for 12 or more months of a consecutive 22-month period as of the time of the filing

of the motion for permanent custody. Mother does not challenge the juvenile court's best

interest findings with regard to R.C. 2151.414(D)(1). Rather, Mother's argument is that the

statutory framework is flawed because "the nature of a heroin addiction is such that the

statutory 12 out of 22 months is likely to be insufficient time for an addicted parent to turn it

around." Mother cites to no case law or statutory authority in support of this proposition.

{¶ 12} "The rights to conceive and to raise one's children have been deemed

'essential' * * *." Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972), quoting Meyer

v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923). "Despite the fact that we have found

that parents who are suitable have a paramount right to raise and care for their children, it is

equally well settled that '[t]he fundamental interest of parents is not absolute.'" (Citations

omitted.) In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, ¶ 40. "The constitutional right to

raise one's children does not include a right to abuse, exploit, or neglect them, nor is there a

right to permit others to do so." Id. "The state's power to terminate parental rights is

circumscribed." Id. at ¶ 41, citing In re Cunningham, 59 Ohio St.2d 100, 105 (1979).

However, "when that authority is properly invoked, it is fully proper and constitutional to

remove children from their parents' care. [S]uch an extreme disposition is nevertheless

expressly sanctioned * * * when it is necessary for the 'welfare' of the child." In re K.H. at ¶

41, quoting R.C. 2151.01(A).

{¶ 13} 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, 769, 102 S.Ct. 1308 (1982); In re E.G., 12th Dist. Butler

No. CA2013-12-224, 2014-Ohio-2007, ¶ 6. "Clear and convincing evidence is that measure

-5-
 Madison CA2016-05-020
CA2016-05-021

or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction

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

(1954). This 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. An appellate court will not reverse a finding by the juvenile court that the

evidence was clear and convincing absent sufficient conflict in the evidence. Id.

{¶ 14} "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 T.P., 12th Dist. Clermont No. CA-2016-03-012, 2016-Ohio-5780, ¶ 13.

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

interest of the child. R.C. 2151.414(B)(1). In so doing, the court shall consider all relevant

factors, including, but not limited to, the factors enumerated in R.C. 2151.414(D). 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 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. To satisfy part two of the permanent custody test,

only one of the above five findings need be met. In re A.W., 12th Dist. Fayette No. CA2014-

03-005, 2014-Ohio-3188, ¶ 12.

{¶ 15} Mother complains that the 12 of 22 consecutive months' requirement renders it

-6-
 Madison CA2016-05-020
CA2016-05-021

unlikely that a heroin-addicted parent may ever prevail in a permanent custody case because

of the time necessary to overcome the addiction. However, as explained above, the 12 of 22

consecutive months' requirement is only a part of the statutory requisite necessary for the

granting of a motion for permanent custody. As discussed more fully below, a juvenile court

must also find that permanent custody serves the child's best interest based upon the non-

exclusive enumerated factors of R.C. 2151.414(D)(1). Additionally, in this case, the parents

were not limited to the 12-month period during which As.F. was in the temporary custody of

MCDJFS. Rather, the parents and MCDJFS engaged in a voluntary case on January 31,

2014, in which the parents' substance abuse was the primary focus due to As.F. testing

positive for opiates at birth. The parents had nearly two years from the initiation of the

voluntary case to address their drug addiction before the permanent custody motion was filed

on December 1, 2015. During this period, the parents were intermittently incarcerated, failed

to regularly visit As.F., failed to engage in and successfully complete substance abuse and

mental health treatment, and continued to abuse drugs.

{¶ 16} We need not determine in the abstract whether the 12 of 22 consecutive

months' requirement provides sufficient time for a drug-addicted parent to remedy the

conditions that caused the child to be placed outside the home.2 This is not a case where,

despite diligent efforts by the parents to engage in and benefit from case plan services, the

statutory timeframe was not sufficient to remediate the problems leading to the child's

removal from the parents' custody. On the contrary, this is a case where the parents failed to

utilize the time afforded to them to make any substantial progress toward reunification. A

juvenile court "is not required to deny [a] permanent custody motion simply based upon the

2. It is worth noting that consistent with many appellate districts in the state of Ohio, we have previously held the
12 of 22 consecutive months' requirement is not unconstitutional. Accord In re M.O., 12th Dist. Warren Nos.
CA2011-01-003 and CA2011-01-008, 2011-Ohio-2855, ¶ 40.
-7-
 Madison CA2016-05-020
CA2016-05-021

groundless speculation that the [parents] might successfully complete [their] drug treatment, *

* * and remain drug-free." In re E.F., 12th Dist. Clinton Nos. CA2016-03-003, CA2016-03-

004, CA2016-03-005, CA2016-03-006, and CA2016-03-007, 2016-Ohio-7265, ¶ 36, citing In

re J.C., 4th Dist. Adams No. 07CA834, 2007-Ohio-3783, ¶ 25. The law does not afford a

parent an indefinite period to remedy the conditions that caused the child's removal. In re

A.M.L., 12th Dist. Butler No. CA2013-01-010, 2013-Ohio-2277, ¶ 32.

{¶ 17} Turning now to whether permanent custody served As.F.'s best interest, R.C.

2151.414(D)(1), provides:

[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.

{¶ 18} In granting MCDJFS's motion for permanent custody, the juvenile court

considered each of the best interest factors. With respect to the first statutory factor, the

juvenile court found that both parents failed to follow through with MCDJFS since the juvenile

court granted temporary custody on September 25, 2014. Further, the juvenile court found

-8-
 Madison CA2016-05-020
CA2016-05-021

that Mother's mental health has not been stable nor has she maintained employment

throughout the pendency of the case. Additionally, both parents have continued their drug

use throughout the case. The juvenile court also considered the testimony of the GAL that

As.F. did not seem attached to either parent and that the parents' visitation has been

sporadic with Mother attending only 6 of 58 visits and Father attending only 12 of 79 visits.

Finally, the court noted that there are no other relatives available for an appropriate

placement.

{¶ 19} In consideration of the second statutory factor, the juvenile court found that,

due to her young age, As.F. was too young to express her wishes. The GAL also expressed

this position with respect to As.F.'s age. Additionally, the GAL recommended granting

permanent custody to MCDJFS based upon the parents' repeated failure to remedy the

conditions that initially caused As.F. to be placed with a foster family. The GAL cited their

lack of commitment toward As.F. by failing to regularly support, visit, and communicate with

As.F., their unwillingness to provide a stable permanent home by not maintaining a residence

or employment, and their refusal to make any strides in completing their case plans, as

neither has even completed their mental health assessment in addition to providing positive

drug screens throughout the pendency of the case.

{¶ 20} With respect to the third statutory factor, the juvenile court reviewed the child's

custodial history and found As.F. was adjudicated dependent and had been in the temporary

custody of MCDJFS for 12 or more months of a consecutive 22-month period.

{¶ 21} In considering the fourth statutory factor, the juvenile court found that As.F. was

in need of a legally secure placement and that As.F.'s need for such a placement could not

be achieved without a grant of permanent custody. The juvenile court stated that MCDJFS

had made reasonable efforts to prevent As.F.'s continued removal from the natural parents'

-9-
 Madison CA2016-05-020
CA2016-05-021

home, including developing a case plan, arranging counseling and transportation, and

attempting to perform home visits. Considering the extent of these efforts by MCDJFS and

the consistent noncompliance of the parents, the juvenile court found that reunification was

not possible.

{¶ 22} Despite these repeated failures by both parents to make any real steps in

completing their case plans, Mother now claims both parents have found a program that is

helping them meet the goals of their case plans and overcome their addiction. This claim

requires the court to speculate whether Mother and Father can obtain and permanently

maintain sobriety, despite the weight of the evidence demonstrating an unwillingness to make

any real effort to achieve the goals of their case plans, let alone just sobriety. Accord In re

E.F., 12th Dist. Clinton Nos. CA2016-03-003, CA2016-03-004, CA2016-03-005, CA2016-03-

006, CA2016-03-007, 2016-Ohio-7265, ¶ 34. "To anticipate the future, however, is at most a

difficult basis for a judicial determination. The child's present condition and environment is

the subject for decision[,] not the expected or anticipated behavior of unsuitability or unfitness

of the * * * [parent]." Id., citing In re R.S.-G., 4th Dist. Athens No. 15CA2, 2015-Ohio-4245, ¶

53. "The law does not require the court to experiment with the child's welfare to see if [s]he

will suffer great detriment or harm." In re R.S.-G. at 53.

{¶ 23} Finally, with respect to the fifth statutory factor, the juvenile court noted both

parents have a history of drug and/or alcohol abuse, each have tested positive for illegal

drugs on several occasions throughout the pendency of temporary custody, and As.F. tested

positive for opiates at birth.

{¶ 24} Based on these findings, the juvenile court found by clear and convincing

evidence that it was in As.F.'s best interest to grant permanent custody to MCDJFS. After a

thorough review of the record, we find that the juvenile court's determination regarding the

- 10 -
 Madison CA2016-05-020
CA2016-05-021

best interest of As.F. is supported by clear and convincing evidence. See In re S.S., 2d Dist.

Miami No. 2011-CA-07, 2011-Ohio-5697, ¶ 31-38 (holding a grant of permanent custody was

in child's best interest where parent failed to make any progress in case plan and failed to

become and remain drug free). Though it does appear that Mother and Father have a deep

affection and love for As.F., there are compelling reasons to weigh the best interest factors in

favor of permanent custody to MCDJFS. Specifically, the ongoing concerns with the parents

continued drug use, their refusal to make any real attempts at completing their case plans,

their inability to secure stable housing or employment throughout the temporary custody

period, their overwhelming failure to attend visits with As.F., and their sporadic

communication issues over an extended period.

{¶ 25} Finally, Mother suggests that the juvenile court awarded MCDJFS permanent

custody of As.F. based upon her status as a drug addict when she argues that absent the

parents' drug addiction, there was not any evidence of abuse or neglect. First, As.F. was

adjudicated a dependent child, not an abused or neglected child. Nonetheless, As.F. is an

abused child because she was born testing positive for opiates. See, e.g., In re Baby Boy

Blackshear, 90 Ohio St.3d 197, 200 (2000) ("when a newborn child's toxicology screen yields

a positive result for an illegal drug due to prenatal maternal drug abuse, the newborn is, for

purposes of R.C. 2151.031[D], per se an abused child."). Second, in a permanent custody

case, the focus is not upon whether the child continues subject to abuse, neglect, or

dependency, but whether the conditions causing removal have been remediated and whether

permanent custody is in the child's best interest with reference to the statutory factors.

{¶ 26} A review of the juvenile court's decision reveals that it never relied upon the

parents' status as drug addicts in granting permanent custody. Compare In re K.H., 119 Ohio

St.3d 538, 2008-Ohio-4825, ¶ 53 (affirming grant of permanent custody where juvenile court

- 11 -
 Madison CA2016-05-020
CA2016-05-021

considered multiple factors affecting the safety of a child living with a pedophile, including the

nature and progress of treatment and ongoing concerns of relapse), with In re D.A., 113 Ohio

St.3d 88, 2007-Ohio-1105, ¶ 35 (reversing grant of permanent custody where juvenile court

based decision solely on parents limited cognitive abilities, rather than their progress within

their respective case plans, ability to provide clothing, food, shelter, and care, and their

relationship with the child). The court in K.H. found that one's status as a pedophile was

categorically distinct from the ongoing concerns of relapse and child safety. Consistent with

K.H. and contrary to Mother's argument, current substance abuse is distinct from one's status

as a drug addict. Moreover, as the discussion of the best interest factors above reveals, the

juvenile court relied upon the evidence relating to the various statutory factors, which

included, but was not limited to, the parents' continued abuse of drugs during the pendency

of the case. Mother's sole assignment of error is hereby overruled.

{¶ 27} Judgment affirmed.

S. POWELL and HENDRICKSON, JJ., concur.

- 12 -