In re T.L.

[Cite as In re T.L., 2018-Ohio-138.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

IN RE: T.L. :
CASE NOS. CA2017-07-037
: CA2017-07-038

: OPINION
1/16/2018
:

:

APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 2015JC4724

Scott A. Hoberg, 9146 Cincinnati-Columbus Road, West Chester, Ohio 45069, for appellant
A.L.

Suellen M. Brafford, 285 East Main Street, Batavia, Ohio 45103, for appellant, M.L.

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for Clermont County Department of Job &
Family Services

M. POWELL, J.

{¶ 1} A.L. and M.L. ("Mother" and "Father" respectively or "parents" collectively)

appeal the decision of the Clermont County Juvenile Court, which granted permanent

custody of their son, T.L., to the Clermont County Department of Job and Family Services.

For the reasons discussed below, this court affirms the decision of the juvenile court.
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{¶ 2} In October 2014, the Clermont County Department of Job and Family

Services ("JFS" or "the agency") established an unofficial case concerning T.L. The

unofficial case was intended to address risks to T.L.'s health, safety and welfare, based

upon the parents' substance abuse and incidents of domestic violence between the parents.

In December 2014, the agency closed this unofficial case after Mother and Father agreed

to transfer custody of T.L. to a family friend. However, one month later the friend informed

JFS that she could no longer care for T.L. because Mother and Father were threatening

her. As a result, in January 2015, JFS filed a complaint alleging that T.L., then almost five

years old, was a dependent child. The court held an emergency hearing and placed T.L. in

the temporary custody of JFS. The agency thereafter placed T.L. in a foster home.

{¶ 3} The agency initiated a case plan with the goal of reunifying Mother and Father

with T.L. The plan required Mother and Father to receive substance abuse counseling and

treatment. The case plan further required Mother and Father to attend parenting classes

and complete anger management and counseling with respect to their issues with domestic

violence. In addition, Mother and Father were required to obtain stable income and safe

and stable housing for T.L. The case plan provided Mother and Father with weekly

supervised visits with T.L.

{¶ 4} In April 2015, the court adjudicated T.L. a dependent child. Following a June

2015 dispositional hearing, the court continued temporary custody with the agency. The

court twice extended temporary custody with the agency.

{¶ 5} In August 2016, JFS moved for permanent custody, alleging that T.L. had

been in its custody for 12 or more months of a consecutive 22-month period, that T.L. could

not or should not be placed with either of his parents within a reasonable time, and that it

was in T.L.'s best interest that the court grant the agency permanent custody. T.L.'s

guardian ad litem ("GAL") filed a written report recommending that the court grant

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permanent custody to JFS.

{¶ 6} In January 2017, the court held the permanent custody hearing. A JFS

caseworker testified that beginning in October 2014 and through December 2014, Mother

and Father had several incidents of domestic violence, which their children witnessed.1

Father was drunk during these incidents. Following these incidents, Mother and Father

voluntarily transferred custody of T.L. to a family friend in December 2014.2

{¶ 7} With respect to Mother's progress in her case plan, the caseworker testified

that Mother completed those aspects of her case plan related to substance abuse. Mother

sporadically attended specified therapy/counselling sessions related to mental health and

domestic violence concerns, missing seven appointments. The service provider rated

mother's progress as a 6 or 7 on a scale of 10.

{¶ 8} Mother never satisfied the stable income component of the case plan. She

briefly obtained employment in November 2016, which ended the same month. Otherwise,

Mother was unemployed throughout the case.

{¶ 9} The case plan specified that Father engage in a substance abuse assessment

and comply with any resulting recommendations. In furtherance of this requirement, the

agency referred Father to a substance abuse recovery center in January 2015. However,

father did not begin the program and the recovery center closed his case.

{¶ 10} Approximately 14 months later, in March 2016, Father completed an alcohol

assessment at a behavioral health center. However, contrary to the recommendation for

treatment arising from the assessment, Father failed to return to the health center for

another four months and reported ongoing alcohol use during this time. In August 2016,

1. Mother and Father have four other children. These children were transferred to a different family friend
and are not involved in this case.

2. The record is unclear as to whether Mother and Father formally transferred legal custody to the friend.
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over a year and a half after the case began, father began an inpatient alcohol abuse

program. Father completed the two-week program and reported to the caseworker that he

had remained sober since. Father's recommendations upon leaving the inpatient program

were to engage an Alcoholics Anonymous ("AA") sponsor within two weeks and attend 90

AA sessions in 3 months and to follow up with the behavioral health center. Notwithstanding

these recommendations, Father failed to obtain a sponsor and attended only five AA

sessions. The behavioral health center closed Father's case for non-compliance the next

month. In November 2016, Father re-engaged with the behavioral health center and began

counseling services on both substance abuse and mental health/domestic violence issues.

{¶ 11} With respect to his income, Father worked in 2016 for a power company and

earned around $3,000. He was unemployed at the time of the permanent custody hearing,

but had submitted two job applications. He told the caseworker that he did not have enough

gas money to drive around and look for employment.

{¶ 12} Despite the case plan requirement that Mother and Father obtain and

maintain stable housing, they were unable or unwilling to do so. When the case began,

Mother and Father were living in various friends' homes. In the summer of 2015, they

moved to the home of Father's mother and aunt. The home is a small trailer located in

Cynthiana, Kentucky. The trailer has two bedrooms and a small living room area. The

trailer has no dedicated heat source. Instead, the occupants were using an oven and space

heaters.

{¶ 13} Beginning in June 2015, the caseworker visited the trailer every other month

to inspect its condition. Both bedrooms were filled with boxes and were uninhabitable.

However, two days before the permanent custody hearing, the caseworker observed that

one bedroom had been cleared and a bed was placed there for T.L. The caseworker

reported that this was the only improvement to the property that she had observed since

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she began visiting the home.

{¶ 14} Because the trailer was in Kentucky, it was necessary that a Kentucky

agency conduct the home study. The home study did not begin until shortly before the

permanent custody hearing. The caseworker had previously cautioned Mother and Father

that if they intended to reside in Kentucky, an interstate home study would be required and

would involve additional time for completion. However, Mother and Father informed the

caseworker that they intended to move back to Ohio and obtain independent housing.

{¶ 15} The home study was not finalized by the time of the permanent custody

hearing. However, the Kentucky social worker who conducted the home study reported

concerns with the trailer. Additionally, the worker reported that there were five vicious dogs

housed outside the property, one of which bit her as she was concluding a home visit.

{¶ 16} Mother and Father were dependent upon Father's mother and aunt for

support during the time they resided at the trailer. Father's mother also told the caseworker

that she did not intend to continue supporting Mother and Father financially.

{¶ 17} The caseworker testified that Mother and Father applied for food stamps

shortly before the permanent custody hearing and would be receiving $357 per month in

food assistance income. The caseworker testified that the agency had provided Mother

and Father with $1,340 in gas cards, which was an "extremely high" amount relative to other

cases. Mother and Father informed the agency that they could not have traveled from

Kentucky to visit T.L. without this assistance.

{¶ 18} With respect to visitation, both Mother and Father did well. Mother exercised

93 out of 100 visits. Father exercised 69 out of 100 visits. However, many of Father's

missed visits were related to his being out of town for work. Father would still call in during

the missed visits so he could speak with T.L. The visits went well and it was clear that T.L.

and his parents were bonded.

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{¶ 19} Mother and Father both completed an initial round of parenting classes.

However, the agency would not permit them to continue taking parenting classes until they

completed other unresolved aspects of their case plan.

{¶ 20} Ultimately, the caseworker testified that many of the same barriers for

reunification existed at the permanent custody hearing as did when the case began.

Specifically, the agency was concerned that Mother and Father lacked income and suitable

housing. In addition, neither parent had finished their case plan requirements and Father

had just recently resumed working towards completing his case plan with respect to

substance abuse and domestic violence issues.

{¶ 21} The caseworker testified that the agency placed T.L. in a foster home upon

removal and he remained there until late December 2016. The foster family was unwilling

to pursue adoption, so the agency moved T.L. to a new foster home where he was "doing

great," was engaged in family Christmas activities, and "felt like part of the family."

{¶ 22} The GAL testified that she had been assigned to the case since T.L.'s

removal. With respect to T.L.'s wishes, T.L. liked his new foster home and would like to

stay with the foster family. However, T.L. would also be "okay" if the court decided to send

him to live with his parents. The GAL recommended that the court grant permanent custody

to the agency. The GAL noted that Father's mother indicated that she did not want T.L.

living with them in the trailer.

{¶ 23} Father testified that he had been sober since he completed the inpatient

program in August 2016. Father did not attend AA meetings because he thought it was

only a recommendation and felt he did not need to attend AA if he did not believe it would

be helpful. With respect to his housing situation, Father said that the family had just been

approved for 200 gallons of kerosene the day before the permanent custody hearing.

Father conceded that he had four other children but could not see them because the

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children's caregiver had a restraining order against him.

{¶ 24} Mother did not testify or call any witnesses. A magistrate issued a decision

recommending that the court grant permanent custody to the agency. Mother and Father

filed objections to the magistrate's decision. In July 2017, the court issued an order

overruling the objections and awarding permanent custody to the agency. Mother and

Father appeal, each raising one assignment of error for our review.

{¶ 25} Mother's Assignment of Error:

{¶ 26} IN A CHILD CUSTODY CASE, THE TRIAL COURT ERRED IN ITS

DECISION AND ORDER GRANTING PERMANENT CUSTODY OF THE CHILD TO THE

AGENCY DESPITE THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 27} Father's Assignment of Error:

{¶ 28} THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT

CUSTODY TO CLERMONT COUNTY JOB AND FAMILY SERVICES "AGENCY[.]"

{¶ 29} Mother and Father present similar arguments, which we address together.

Mother and Father contend that the evidence at the permanent custody hearing did not

support the conclusion that a grant of permanent custody to the agency was in T.L.'s best

interest. Instead, the evidence established that Mother and Father exercised visitations

with T.L., were bonded with their child, and T.L. expressed a desire to live with his parents.

Father argues that the evidence showed that he sought employment, completed some

aspects of his case plan, and was currently engaged in counseling. Mother contends that

the evidence with respect to the suitability of the parents' housing situation in Kentucky was

inconsistent and was not based on a completed interstate home study.

{¶ 30} Before natural parents' constitutionally protected liberty interest in the care

and custody of their 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.

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Santosky v. Kramer, 455 U.S. 745, 769, 102 S.Ct. 1388 (1982); R.C. 2151.414(B)(1). 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 J.H., 12th Dist. Clinton Nos. CA2015-07-014 and CA2015-07-015, 2016-Ohio-640, ¶

21.

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

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). Only one of those findings must be met to satisfy the second prong

of the permanent custody test. In re D.K.W., 12th Dist. Clinton No. CA2014-02-001, 2014-

Ohio-2896, ¶ 22.

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

T.L. had been in the agency's temporary custody for 12 or more months of a consecutive

22-month period. Mother and Father do not dispute this finding. Rather, T.L.'s parents

dispute that granting permanent custody of T.L. to the agency was in T.L.'s best interest.

{¶ 33} R.C. 2151.414(D)(1) sets forth the statutory best-interest factors:

[T]he court shall consider all relevant factors, including, but not

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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.

{¶ 34} In granting JFS' 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 Mother and Father were bonded with T.L. and visited him on a regular basis, with

Mother visiting T.L. 93 times and Father visiting 69 times. There was no evidence

concerning T.L.'s relationship with his four siblings. T.L. was currently in a license-to-adopt

foster home and the foster parents had no other foster children in the home. The

caseworker reported that T.L. was doing well and was happy with his new foster family.

The foster family engaged T.L. in Christmas activities. The foster family may be interested

in adopting T.L.

{¶ 35} As to the second statutory factor, the juvenile court found that T.L. wanted to

stay with his current foster family but would be "okay" with being returned to his parents.

The GAL recommended that the court grant permanent custody to the agency because

Mother and Father had not demonstrated that they could provide for T.L.'s basic needs.

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{¶ 36} In consideration of the third statutory factor, the juvenile court found that T.L.

had been in the agency's custody since January 2015 and the agency moved for permanent

custody in August 2016. Consequently, the court found that T.L. had been in the agency's

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

{¶ 37} With respect to the fourth factor, i.e., T.L.'s need for a legally secure

placement, the court found that Mother and Father were unable to establish a safe home

for the child. Mother's and Father's current residence was a small trailer that had no

habitable bedroom until shortly before the hearing. Mother and Father slept in an extension

to the trailer while Father's mother and aunt slept on couches in the living room. While an

interstate home study had not been completed by the time of the hearing, the Kentucky

caseworker's observations were not encouraging, as the trailer was heated only by space

heaters and an oven and there were vicious dogs outside of the trailer. In addition, Father's

mother was reluctant to have T.L. live with them and was concerned about supporting the

parents and the child on a permanent basis.

{¶ 38} The court observed that Mother and Father have a history of failing to

address issues until the last moment. As an example, the court noted that the parents

waited until just prior to the permanent custody hearing to prepare a room at the trailer

suitable for T.L. Except for Mother's success with the substance abuse portion of her case

plan, neither parent demonstrated an ability to make a lasting change for T.L.'s benefit.

{¶ 39} The court noted that neither parent could support themselves financially over

the two-year pendency of the case. Father received unemployment compensation but his

benefits ended when he failed to file the necessary paperwork. The court noted that this

failure demonstrated Father's lack of commitment to becoming self-sufficient or making a

lasting change. The court found that neither parent had shown any prospect of being able

to meet T.L.'s basic needs.

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{¶ 40} The juvenile court observed that no appropriate relative was available to care

for the child. The child's paternal aunt had expressed a desire but was on probation for a

felony conviction for assaulting a police officer, and thus the agency determined she was

not suitable. Finally, the court found that none of the factors listed in R.C. 2151.414(E)(7)

through (11) were applicable.

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

evidence that it was in T.L.'s best interest to grant permanent custody to JFS. After a

thorough review of the record, we find that the juvenile court's determination regarding T.L.'s

best interest is supported by sufficient credible evidence.

{¶ 42} Father argues that he made some progress on his case plan objectives,

including regularly visiting with T.L. However, in the two years this case was pending Father

made no progress on achieving stability with respect to his income or safe, suitable housing.

Accordingly, we reject Father's argument that the best-interest factors weighed towards

granting him custody. We also reject Mother's argument that the evidence concerning the

trailer was inconsistent or was not properly demonstrated through a finalized interstate

home study. Mother did not object to the caseworker's testimony concerning the incomplete

home study. And the caseworker consistently testified as to the home's condition, i.e., that

it was heated only by space heaters and an oven.

{¶ 43} T.L. needs permanency and cannot and should not wait until his parents are

able to resolve their issues. A grant of permanent custody to the agency, where T.L. can

be adopted by a family that can provide for his basic needs, is the only viable solution.

Moreover, there were no other dispositional alternatives available to the juvenile court. An

order extending temporary custody pursuant to R.C. 2151.415(A)(6) was not an available

dispositional alternative, as R.C. 2151.415(D)(4) prohibits an extension of temporary

custody beyond two years after the filing of the January 2015 dependency complaint. An

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order for a planned permanent living arrangement pursuant to R.C. 2151.415(A)(5) was not

an available dispositional alternative, as T.L. was not yet 16 years old as required by R.C.

2151.415(C)(1). An order placing T.L. in the legal custody of a relative or other interested

individual was not an available dispositional alternative as no such person filed a motion

requesting legal custody or was identified in the complaint or a motion as a proposed legal

custodian as provided by R.C. 2151.353(A)(3). Finally, orders that T.L. be returned to the

custody of a parent or placed into the protective supervision of a parent pursuant to R.C.

2151.415(A)(1) and (2), respectively, were practically unavailable because, as discussed

above, Mother and Father failed to remedy the barriers to reunification with T.L. Mother

and Father's assignments of error are overruled.

{¶ 44} Judgment affirmed.

S. POWELL, P.J., and RINGLAND, J., concur.

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