In re D.E.

[Cite as In re D.E., 2018-Ohio-3341.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

IN THE MATTER OF: D.E. :

: CASE NOS. CA2018-03-035
CA2018-04-038
:
OPINION
: 8/20/2018

:

APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. 16-D000042

Caparella-Kraemer & Associates, LLC, Tyler W. Nagel, 4841-A Rialto Road, West Chester,
OH 45069, for appellant, father

Mark W. Raines, 246 High Street, Hamilton, OH 45011, for appellant, maternal grandmother

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice
Drive, Lebanon, OH 45036, for appellee, Warren County Children Services

S. POWELL, P.J.

{¶ 1} Appellants, the biological father ("Father") and maternal grandmother

("Grandmother") of D.E., appeal the decision from the Warren County Court of Common

Pleas, Juvenile Division, granting permanent custody of D.E. to appellee, Warren County

Children Services ("WCCS"). For the reasons outlined below, we affirm.
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Facts and Procedural History

{¶ 2} On January 7, 2016, D.E. was born weighing 6.03 pounds. At the time of his

birth, the identity of D.E.'s biological father was unknown. Following a paternity test, D.E.'s

biological father was proven to be Father, who, as noted above, is a party to this appeal.

At Grandmother's request, the juvenile court permitted Grandmother, who is also a party to

this appeal, to intervene and participate in the juvenile court proceedings. D.E.'s biological

mother ("Mother") is not a party to his appeal and her whereabouts are generally unknown.

{¶ 3} On March 9, 2016, WCCS filed a complaint alleging D.E. was a neglected and

dependent child. In support of its complaint, WCCS alleged D.E. had lost weight since his

birth, then weighing just 5.62 pounds. Due to D.E.'s weight loss in the weeks following his

birth, Mother was instructed to immediately take D.E. to the hospital. Mother agreed.

Mother, however, did not take D.E. to the hospital until the following day.

{¶ 4} Once at the hospital, D.E. was observed to be "very hungry," but that he

nevertheless took his bottle "appropriately." D.E. was also observed to have "skin hanging

off of his legs and his ribs and backbone were visible," which resulted in D.E. being

diagnosed as failure to thrive. When confronted about D.E.'s condition, although having

more than enough food for D.E.'s four older siblings, Mother claimed she had just recently

run out of formula for D.E. It is undisputed that D.E. gained one pound during his five-day

stay in the hospital. There is also no dispute that D.E. did not gain any additional weight

once he was returned to Mother following his release from the hospital.

{¶ 5} Several days after D.E. was released from the hospital, the record indicates

Mother failed to take D.E. to several "weight-check" appointments. Due to Mother's failure

to attend these appointments, a nurse was dispatched to Mother's home. Once there, the

nurse observed D.E. struggling with labored breathing. According to WCCS' complaint,

when asked about D.E.'s breathing, "Mother told the nurse that she noticed the labored

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breathing, but she did not have a ride to the hospital." D.E. was then taken to the hospital

via ambulance. D.E., however, was not admitted to the hospital. D.E. was instead returned

to Mother with instructions to return to the hospital for a follow-up appointment. Due to

Mother's apparent inability to properly care for D.E., WCCS concluded its complaint by

noting its concern that "Mother is unable to follow through with the necessary medical care

for [D.E.]."

{¶ 6} Shortly after WCCS filed its complaint, the juvenile court held an emergency

shelter care hearing and placed D.E. in the emergency shelter care of WCCS. The juvenile

court also appointed D.E. with a court appointed special advocate ("CASA"). After being

placed in the temporary custody of WCCS, on March 10, 2016, D.E. was moved to a nearby

foster-to-adopt foster home. It is undisputed that D.E. has resided in the same foster-to-

adopt home with the same foster parents after he was placed in the temporary custody of

WCCS. D.E.'s foster mother is a stay-at-home mother to her other children, whereas foster

Father is a member of the Air Force stationed at Wright Patterson Air Force Base.

{¶ 7} On May 13, 2016, the juvenile court issued a decision adjudicating D.E. a

dependent child. Approximately three weeks later, the juvenile court issued a dispositional

decision ordering D.E. remain in the temporary custody of WCCS. A case plan was then

established for Mother that required Mother to take parenting classes, learn how to parent

a child that has been diagnosed with failure to thrive, and comply with all recommendations

made by medical professionals regarding D.E.'s care. Mother was also required to submit

to random drug screens and to maintain stable housing, employment, and income.

{¶ 8} On September 2, 2016, the juvenile court held a 90-day review hearing after

which the juvenile court found it was in D.E.'s best interest to remain in the temporary

custody of WCCS. The juvenile court also found Mother had been slow to engage in the

required case plan services in that Mother had yet to complete the necessary parenting

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classes. Several weeks later, a conflict was discovered that required the CASA be removed

from the case, thus resulting in the juvenile court appointing D.E. with a guardian ad litem.

{¶ 9} On December 2, 2016, the juvenile court held a 180-day review hearing and

the juvenile court again determined it was in D.E.'s best interest to remain in the temporary

custody of WCCS. The juvenile court also found Mother had still not engaged in case plan

services as she had still not completed the necessary parenting classes. The juvenile court

further found Mother had neither visited with D.E. nor provided WCCS with a negative drug

screen. The record indicates Mother thereafter submitted to a random drug screen and

tested positive for marijuana. Mother also acknowledged that she had consumed alcohol.

{¶ 10} On March 3, 2017, the juvenile court held a 270-day review hearing and once

again determined it was in D.E.'s best interest to remain in the temporary custody of WCCS.

The juvenile court also found Mother had limited contact with D.E. and WCCS and that

Mother now disputed the need for the required case plan services, including the need to

complete the necessary parenting classes. The juvenile court further found Father had not

had any contact with D.E. or WCCS since D.E. was placed in its temporary custody.

{¶ 11} After holding the 270-day review hearing, the juvenile court granted WCCS'

motion for a six-month extension of the juvenile court's temporary custody order. Shortly

thereafter, once Father's paternity was established, an amended case plan was approved

by the juvenile court noting Father now wanted to be involved in the case and work to obtain

custody of D.E. To that end, the amended case plan required Father to submit to random

drug screens, take parenting classes, and obtain stable housing and employment.

{¶ 12} Following a June 2, 2017 360-day review hearing, the juvenile court again

determined it was in D.E.'s best interest to remain in the temporary custody of WCCS. The

juvenile court also found Father had since engaged in some of the required case plan

services, but that Father still needed to obtain stable housing and employment. As for

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Mother, the juvenile court found Mother had not had any contact with WCCS for

approximately three months. The juvenile court also found Mother seldom if ever visited

D.E. Finally, as it relates to Grandmother, the juvenile court granted Grandmother visitation

with D.E., which included a plan to gradually increase Grandmother's visitation time in

hopes that she would ultimately be granted legal custody of D.E. and D.E.'s four older

siblings, all of whom were under the age of ten.

{¶ 13} On June 15, 2017, Grandmother filed a pro se motion for legal custody of D.E.

arguing it was in D.E.'s best interest to reside with her instead of with his foster parents. At

the time Grandmother filed her motion, it is undisputed that Grandmother was taking care

of D.E.'s four older siblings who had since been placed in her care. It is also undisputed

that Grandmother was later granted legal custody of D.E.'s four older siblings then in her

care on September 1, 2017.

{¶ 14} On August 21, 2017, WCCS filed another motion requesting an additional six-

month extension of the juvenile court's temporary custody order. Ten days later, on August

31, 2017, the guardian ad litem filed a motion for permanent custody of D.E. to WCCS. As

part of this motion, the guardian ad litem noted that Father, who lived in a one-bedroom

apartment, had not verified his employment or income, "although he reports working as a

'promoter' and is paid in cash." The guardian ad litem also noted that Father had been

inconsistent in visiting with D.E. after his paternity was established. The guardian ad litem

further noted that Grandmother had not visited D.E. in the weeks since the juvenile court

had granted her visitation. The guardian ad litem additionally noted that D.E. had now

bonded with his foster parents, the same foster parents D.E. had resided with since being

placed in the temporary custody of WCCS on March 10, 2016. WCCS later filed a notice

withdrawing its motion for an additional six-month extension of the juvenile court's

temporary custody order, as well as a memorandum in support of the guardian ad litem's

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motion for permanent custody.

{¶ 15} On September 1, 2017, the juvenile court held a 450-day review hearing after

which it once again determined it was in D.E.'s best interest to remain in the temporary

custody of WCCS. The juvenile court also found Mother had not visited D.E. in several

months and that Father had only visited D.E. sporadically. The following month, on October

16, 2017, Father also filed a motion for legal custody of D.E.

{¶ 16} Beginning on December 8, 2017, the juvenile court held a three-day hearing

on all motions then pending, including both Father and Grandmother's motions for legal

custody and the guardian ad litem's motion for permanent custody. This hearing ultimately

concluded on March 5, 2018. As part of this three-day hearing, the juvenile court heard

testimony from both Father and Grandmother, the guardian ad litem, as well as D.E.'s foster

parents, among others. As part of this testimony, D.E.'s foster mother specifically testified

that she and her husband were "100 percent" interested in adopting D.E. should WCCS be

granted permanent custody.

{¶ 17} On March 13, 2018, the juvenile court issued a detailed 17-page decision

granting the guardian ad litem's motion for permanent custody to WCCS. In so holding, the

juvenile court found that having D.E. be adopted by his foster parents was "the best chance

for [D.E.] to achieve the stable family home he needs. His adoption is not possible without

a grant of permanent custody to WCCS."

Appeal

{¶ 18} Father and Grandmother now appeal from the juvenile court's decision,

collectively raising the following three assignments of error for review.

{¶ 19} Father's Assignment of Error No. 1:

{¶ 20} THE TRIAL COURT ERRED IN GRANTING THE GUARDIAN AD LITEM'S

MOTION FOR PERMANENT CUSTODY.

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{¶ 21} Grandmother's Assignment of Error No. 1:

{¶ 22} THE TRIAL COURT ERRED WHEN IT DENIED [GRANDMOTHER'S]

MOTION FOR LEGAL CUSTODY.

{¶ 23} Grandmother's Assignment of Error No. 2:

{¶ 24} THE TRIAL COURT'S DECISION TO GRANT WARREN COUNTY

CHILDREN'S SERVICES PERMANENT CUSTODY IS NOT SUPPORTED BY

SUFFICIENT CLEAR AND CONVINCING EVIDENCE AND IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 25} For ease of discussion, the arguments raised by Father and Grandmother

within their three assignments of error will be addressed together.

Standard of Review

{¶ 26} In each of their three assignments of error, Father and Grandmother argue

the juvenile court's decision to grant the guardian ad litem's motion for permanent custody

was not supported by sufficient evidence and was otherwise against the manifest weight of

the evidence. Under these circumstances, this court applies the following standard of

review.

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

and custody of his 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. In

re K.W., 12th Dist. Butler No. CA2015-06-124, 2015-Ohio-4315, ¶ 11, citing 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 generally 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. In turn,

this court will reverse a juvenile court's decision only if there is a sufficient conflict in the

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evidence presented. In re K.A., 12th Dist. Butler No. CA2016-07-140, 2016-Ohio-7911, ¶

10. However, even if the juvenile court's decision is supported by sufficient evidence, "an

appellate court may nevertheless conclude that the judgment is against the manifest weight

of the evidence." In re T.P., 12th Dist. Butler No. CA2015-08-164, 2016-Ohio-72, ¶ 19.

{¶ 28} As with all challenges to the manifest weight of the evidence, in determining

whether a juvenile court's decision is against the manifest weight of the evidence in a

permanent custody case, an appellate court "weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines whether in resolving

conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest

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

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20. The presumption in weighing the

evidence is in favor of the finder of fact, which we are especially mindful of in custody cases.

In re C.Y., 12th Dist. Butler Nos. CA2014-11-231 and CA2014-11-236 thru CA2014-11-238,

2015-Ohio-1343, ¶ 25. Therefore, "[i]f the evidence is susceptible to more than one

construction, the reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and judgment."

Eastley at ¶ 21.

Analysis

{¶ 29} As noted above, in each of their three assignments of error, Father and

Grandmother argue the juvenile court's decision to grant the guardian ad litem's motion for

permanent custody was not supported by sufficient evidence and was otherwise against

the manifest weight of the evidence. Father and Grandmother instead argue that it was in

D.E.'s best interest to grant legal custody of D.E. to either Father or Grandmother, generally

noting their strong bond to D.E. and their collective desire to include D.E. as part of their

family unit.

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{¶ 30} Pursuant to R.C. 2151.414(B)(1), the juvenile court may terminate parental

rights and award permanent custody of a child to a children services agency if the court

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 juvenile 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 juvenile 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. In re C.B., 12th Dist.

Clermont No. CA2015-04-033, 2015-Ohio-3709, ¶ 10. Only one of these findings must be

met in order to satisfy the second prong of the permanent custody test. In re A.W., 12th

Dist. Fayette No. CA2014-03-005, 2014-Ohio-3188, ¶ 12.

{¶ 31} The juvenile court found D.E. had been in the temporary custody of WCCS

for more than 12 months of a consecutive 22-month period as of the date the guardian ad

litem filed his motion for permanent custody. Father and Grandmother do not dispute this

finding. Rather, as noted above, Father and Grandmother argue the juvenile court's

decision finding it was in D.E.'s best interest to grant the guardian ad litem's motion was not

supported by sufficient evidence and was otherwise against the manifest weight of the

evidence. After a thorough review of the record, because the record fully supports the

juvenile court's decision, we find Father and Grandmother's claims lack merit.

{¶ 32} When considering the best interest of a child in a permanent custody case,

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the juvenile court is required under R.C. 2151.414(D)(1) to consider certain enumerated

factors, which include, but are not limited to (1) 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; (2) the wishes of the

child, as expressed directly by the child or through the child's guardian ad litem; (3) the

custodial history of the child; (4) 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; and (5) whether any of the factors listed in R.C. 2151.414(E)(7) to (11) apply

in relation to the parents and child. In re J.C., 12th Dist. Brown No. CA2017-11-015, 2018-

Ohio-1687, ¶ 22. The juvenile court may also consider any other factor(s) it deems relevant

to the child's best interest. In re N.R.S., 3d Dist. Crawford Nos. 3-17-07 thru 3-17-09, 2018-

Ohio-125, ¶ 15 ("[t]o make a best interest determination, the trial court is required to

consider all relevant factors listed in R.C. 2151.414[D], as well as any other relevant

factors").

{¶ 33} With respect to D.E.'s relevant interactions and relationships with those who

may significantly affect his young life, the record indicates D.E. is bonded to both Father

and Grandmother, as well as his four older siblings for whom Grandmother has legal

custody. However, the record indicates D.E. is also bonded to his foster parents and foster

siblings, having resided in the same foster home with the same foster parents since he was

just two months old. Specifically, as D.E.'s foster mother testified, D.E.'s foster siblings

"love him" and are "very bonded to him," just as D.E. is "very bonded to them."

{¶ 34} We agree with the juvenile court's finding that the record indicates D.E.'s

foster parents are good, hardworking individuals who agreed to undertake the daunting task

of providing D.E. with the stable home after being diagnosed as failure to thrive. The record

also indicates D.E.'s foster parents have expressed their willingness to adopt D.E. should

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permanent custody be granted to WCCS. The record further indicates D.E. is now thriving

in his foster parents' home, a finding that can generally be attributed to D.E.'s foster mother's

status as a stay-at-home mother who focuses her attention exclusively on D.E. throughout

the day.

{¶ 35} Next, in regards to D.E.'s wishes, the juvenile court did not state D.E.'s wishes,

likely due to his young age having just turned two years old. The guardian ad litem,

however, noted as part of his report and recommendation that he believed it was in D.E.'s

best interest to grant permanent custody to WCCS. This is made clear by the fact that it

was the guardian ad litem, not WCCS, who moved the juvenile court to grant permanent

custody. The guardian ad litem further noted in his report and recommendation that D.E.

appeared "very bonded" with his foster parents.

{¶ 36} Regarding D.E.'s custodial history, as noted above, the juvenile court found

D.E. had been in the temporary custody of WCCS for over 12 of a consecutive 22-month

period as of the date the guardian ad litem filed his motion for permanent custody. Neither

Father or Grandmother dispute this finding.

{¶ 37} With respect to D.E.'s need for a legally secure permanent placement, the

record indicates D.E. was in need of permanency after having been in the temporary

custody of WCCS well over 12 months of a consecutive 22-month period. D.E. has now

achieved this legally secure permanent placement with his foster parents. As noted above,

D.E.'s foster parents have expressed their willingness to adopt D.E. Specifically, as D.E.'s

foster mother testified, she and her husband were "100 percent" interested in adopting D.E.

should WCCS be granted permanent custody. D.E.'s foster home is the same home he

was placed in after WCCS obtained temporary custody, thereby fully establishing the

juvenile court's finding D.E.'s foster home was "the only home that [D.E.] has ever known."

{¶ 38} On the other hand, as it relates to Father, the record indicates Father, who

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lives in a one-bedroom apartment, did not have any of the items necessary to raise a two-

year-old child, let alone a child like D.E. who has extensive medical issues that require

special attention. This includes a recent diagnosis that D.E. was suffering from cerebral

palsy. For example, although claiming he had more than enough space to accommodate

D.E. in his home, when asked if he had a bed for D.E., Father testified he had a "futon in

my living room. Futon just lay it out." Although it should generally go without saying, this

is an inappropriate sleeping arrangement for a two-year-old child.

{¶ 39} The record further indicates Father never attended any of D.E.'s medical

appointments, although he testified that he could have, and was generally unaware of D.E.'s

medical needs. This is of particular significance given the fact that Father only visited D.E.

sporadically after he was granted visitation, never attending more than four consecutive

visits, including one visit where Father fell asleep. Father, however, testified he merely

"dozed for like a second right there." Regardless, even when Father would visit D.E., the

record indicates D.E.'s behavior changed after he was returned to his foster parents in that

D.E. would not listen or follow his foster parent's directions. Father testified he missed many

of his visits with D.E. due to a lack of transportation, at one point claiming his key froze in

the lock of his car, and "some due to the weather."

{¶ 40} Continuing, the juvenile court found "Father's attempts at case plan objectives

can be characterized as 'too little, too late.'" This includes Father's last-minute attempt to

complete his required mental health services for which he admittedly missed several

appointments, as well as Father's refusal to submit to several drug screens. When asked

why he refused to submit to several drug screens, Father testified he thought it was

"inappropriate" and that he felt "disrespected for real." Father's refusal to submit to several

drug screens is of particular concern given the fact that Father at one time admitted to

WCCS to smoking marijuana, possibly even daily. Specifically, although Father later

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claimed he was joking, the record indicates Father told a case worker during a home visit

that he smoked marijuana "every day before he became involved with the agency, and, if

[D.E] was back in his care he would be back to smoking pot every day." Father instead

claimed he had been sober for over a year and that he "put all that down, and, try to focus,

get my life together. I'm too old to be trying to kill myself[.]"

{¶ 41} The juvenile court also found that there was some question regarding Father's

employment and income given Father's testimony that he had just recently been laid off

from his part-time position at Kroger and that he now worked as a "promoter" in the music

industry and was paid only in cash. Father, therefore, could not provide any proof of his

employment or income as required by his case plan. Father also testified that he had

worked for a "slaughterhouse" in Cincinnati, sometimes worked for a moving company,

which could result in him working nearly 30 hours per week, and that he was receiving

Social Security benefits. When asked why he was receiving Social Security, Father testified

"I think I got hit upside the head with something, and then they said I had a brain leak."

{¶ 42} As it relates to Grandmother, the juvenile court found Grandmother, who lives

in a two-bedroom townhouse, was already overly committed to taking care of D.E.'s four

older siblings, all of whom were under the age of ten. This is hardly an ideal environment

in which to raise five young children under any circumstances let alone in a situation where

the youngest of those five children, D.E., has significant medical issues that require special

attention. As noted above, this includes a recent diagnosis that D.E. was suffering from

cerebral palsy. As one case worker testified, "there really isn't sufficient space to add [D.E.]

to it given the arrangement of the home. * * * It was more of a space issue." We agree.

{¶ 43} The record also indicates Grandmother failed to follow the prescribed

visitation schedule after she was granted visitation with D.E. As noted by the juvenile court,

the visitation schedule put in place by WCCS gave Grandmother the "perfect opportunity to

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exercise a graduated visitation schedule which most certainly would have resulted in her

getting legal custody of [D.E.]" Grandmother, however, squandered this opportunity by

either not responding or by making various excuses for her absence, such as alleged

conflicts with her work schedule, troubles with her car, and predictions for inclement

weather.1

{¶ 44} The record also indicates Grandmother was at one point denied her visitation

time with D.E. after she refused to show D.E.'s foster parents the car seat she intended to

use to transport D.E. This was a concern given the fact that Grandmother had previously

only had a booster seat instead of the necessary five-point harness car seat. The record

further indicates Grandmother also failed to attend any of D.E.'s medical appointments and

was otherwise unnecessarily argumentative with WCCS regarding D.E.'s care and visitation

schedule.

{¶ 45} Of additional concern to WCCS was the fact that Grandmother initially

disputed WCCS' reasons for removing D.E. from Mother's care, an opinion Grandmother

changed only after being shown several photographs of D.E.'s malnourished, frail body

taken in the days immediately after D.E.'s removal. This court has reviewed the

photographs submitted to the juvenile court. The photographs clearly depict D.E. in

significant need of immediate medical attention, thereby calling into question the veracity of

Grandmother's claim that she had spent several weeks helping Mother care for D.E.

following his birth. Regardless, although Grandmother ultimately changed her opinion, and

despite the fact that Grandmother denied seeing D.E. immediately prior to his removal, the

1. As noted by the juvenile court, Grandmother gave a convoluted explanation of her work schedule, some
weeks claiming to have worked up to 50 hours a week, but more recently only working one day per month.
Based on this court's review of the record, we find Grandmother's claim that her work schedule prevented her
from visiting with D.E. to be disingenuous, particularly when considering Grandmother was given the
opportunity to provide her own visitation schedule, to which Grandmother declined and instead became angry
and irate with WCCS and claimed that she was being "policed" and treated like she was "crazy."
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fact that Grandmother initially disputed WCCS' reasons for removing D.E. from Mother's

care is troubling, particularly when considering Grandmother has since been granted legal

custody of D.E.'s four older siblings, who, as noted above, are all under the age of ten.

{¶ 46} Finally, with respect to any of the factors contained in R.C. 2151.414(E)(7)

thru (11), the juvenile court found Mother had abandoned D.E. in that she had failed to have

any contact with D.E. for a period of at least 90 days prior to the filing of the guardian ad

litem's motion for permanent custody. Yet, even when Mother did visit with D.E., the record

indicates the visits were, at best, unproductive in that Mother wanted to leave mere minutes

after she arrived and at one point arrived intoxicated. The factors contained in R.C.

2151.414(E)(7) thru (11) did not apply to either Father or Grandmother.

{¶ 47} Again, after a full and thorough review of the record, we find the record fully

supports the juvenile court's decision to grant the guardian ad litem's motion for permanent

custody. Father nevertheless argues the juvenile court erred by granting the guardian ad

litem's motion since he was largely compliant with his case plan services. Similarly,

Grandmother argues the juvenile court erred by granting the guardian ad litem's motion

since Father had "complied with all his services, made significant progress towards

resolving the issues of concern and maintained stable housing and income throughout the

case." However, while we agree that these factors would be favorable to Father, the record

does not support many of Father and Grandmother's claims.

{¶ 48} For instance, while Father claims he submitted to random drug screens, all of

which were negative, the record indicates Father had refused to submit to several of these

tests, thus raising a significant question regarding Father's claim that he had since stopped

using illegal drugs, most notably his admitted potentially daily usage of marijuana. As noted

by the juvenile court, "[t]hat fact, in and of itself, is incompatible with getting custody of

[D.E.]" We agree. These concerns are only magnified considering Father at one point told

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a case worker during a home visit that he smoked marijuana "every day before he became

involved with the agency, and, if [D.E] was back in his care he would be back to smoking

pot every day."

{¶ 49} Father also claims he had adequate housing to properly care for D.E. Yet, as

the juvenile court found, Father, who lives in a one-bedroom apartment, "is not equipped to

have [D.E.] in his current living arrangement and has none of the items necessary for a two

year old toddler." This is particularly true here considering Father has since obtained legal

custody of his and Mother's most recent child, a child who at that time was purportedly only

a few months old.2 As a case worker testified, "space wise would be a concern as if there

would be enough space, um, and if he'd be able to accommodate the reported other child

with [D.E.]" Again, when asked if he had a bed for D.E., Father testified he had a "futon in

my living room. Futon just lay it out."

{¶ 50} There were also concerns raised by WCCS that Father was still involved with

Mother given their tumultuous relationship, a relationship Father testified was now on-again-

off-again. This includes numerous allegations of domestic violence. For instance, as one

case worker testified, Father was alleged to have pushed Mother while she was holding one

of D.E.'s older siblings. Although not clear, the record indicates this altercation resulted in

Father being convicted of domestic violence and placed on probation. Father was also

convicted of disorderly conduct after he was alleged to have removed D.E.'s four older

siblings from the house and left them on the street. Father denied these allegations claiming

2. Although the record indicates Father had been granted legal custody of his and Mother's most recent child,
a case worker testified that she found no signs of Father taking care of any children at his apartment. Instead,
the record indicates the child had been placed with a third party, the child's uncle, who had previously been
rejected as a suitable placement for D.E. due to his prior convictions for both robbery and abduction. When
asked about this child, the child's uncle, Father, and Grandmother all provided elusive answers to the juvenile
court's questions regarding the whereabouts of the child. This includes testimony from the child's uncle who
testified "[w]e grabbed [the child] so they, she didn't have to grow up in this. * * * We help with [the child] so
she would never have to go through this."
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that any such claim was untrue. Father did admit, however, that he had never paid his child

support obligations for D.E.'s four older siblings, thereby resulting in Father being

approximately $14,000 in arrears.

{¶ 51} Regardless, even if we were to agree that the record did support Father and

Grandmother's claims, which we do not, it is well-established that "the case plan is 'simply

a means to a goal, but not the goal itself.'" In re E.B., 12th Dist. Warren No. CA2009-10-

139, 2010-Ohio-1122, ¶ 30, quoting In re C.C., 187 Ohio App. 3d 365, 2010-Ohio-780, ¶ 25

(8th Dist.). "[T]he key concern is not whether the parent has successfully completed the

case plan, but whether the parent has substantially remedied the concerns that caused the

child's removal from the parent's custody." (Emphasis sic.) In re S.M., 12th Dist. Clermont

No. CA2015-01-003, 2015-Ohio-2318, ¶ 24. Therefore, while Father and Grandmother

suggest otherwise, when the focus is on D.E.'s best interest, the juvenile court's decision to

grant the guardian ad litem's motion was supported by the facts and circumstances of this

case, which includes, among other factors, the foster-parents' clear desire to adopt D.E. if

permanent custody was granted to WCCS.

{¶ 52} Father next argues the juvenile court erred by granting the guardian ad litem's

motion claiming the juvenile court failed to adequately consider each of the best interest

factors as enumerated in R.C. 2151.414(D)(1). Although not explicit, Grandmother also

alleges the juvenile court failed to consider the required best interest factors. The record,

however, indicates the juvenile court went to great lengths to discuss each of the relevant

factors within its detailed 17-page decision. This includes a lengthy discussion regarding

D.E.'s interaction and interrelationship with his parents, siblings, relatives, foster caregivers

and out-of-home providers, and any other person who may significantly affect the child, as

well as D.E.'s wishes, as expressed directly by the child or through the guardian ad litem.

Therefore, after a simple review of the record, we find Father and Grandmother's claims

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alleging the juvenile court failed to adequately consider each of the best interest factors as

enumerated in R.C. 2151.414(D)(1) are simply incorrect.3

{¶ 53} Both Father and Grandmother further argue that if legal custody could not be

granted to Father, which we find that it could not, the juvenile court should have granted

legal custody to Grandmother. 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. Similar to the best interest analysis under R.C. 2151.414(D), in

the context of a motion for legal custody, the juvenile court is required to consider all

relevant factors listed under R.C. 3109.04(F) in determining the best interest of a child. In

re L.T., 12th Dist. Butler Nos. CA2016-03-048 and CA2016-03-058, 2016-Ohio-5272, ¶ 60.

These factors include, but are not limited to (1) the wishes of the child's parents regarding

the child's care; (2) the child's interaction and interrelationship with the child's parents,

siblings, and any other person who may significantly affect the child's best interest; (3) the

child's adjustment to the child's home, school, and community; and, (4) the mental and

physical health of all persons involved. R.C. 3109.04(F)(1)(a), (c), (d), and (e).

{¶ 54} Father argues the juvenile court erred by denying Grandmother's motion for

legal custody since Grandmother was bonded with D.E., as was D.E. to her. Father also

argues the juvenile court erred by denying Grandmother's motion for legal custody because

Grandmother had a safe and appropriate home where she was already taking care of D.E.'s

four older siblings, all of whom with D.E. was also bonded. Father further argues the

3. Both Father and Grandmother appear to argue the juvenile court was at fault for not addressing D.E.
personally in order to determine his wishes. However, while it may be true that the juvenile court did not
address D.E. personally, at the conclusion of the three-day hearing, D.E. had just turned two years old, thereby
making it virtually impossible for D.E. to articulate his wishes despite the fact that he was on track
developmentally for a child his age. As the guardian ad litem even stated, "at his age [D.E.] is not able to
express his wishes[.]"
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juvenile court erred by denying Grandmother's motion for legal custody since Grandmother

was "educated, employed, and committed to caring for her grandchildren."

{¶ 55} Similarly, Grandmother claims the juvenile court erred by denying her motion

for legal custody because she was a suitable alternative to granting the guardian ad litem's

motion for permanent custody. Therefore, according to Grandmother, when taking into

consideration her bond with D.E., the fact that she has a "suitable home," as well as her

"stable, long term employment," both her and Father's relationship with D.E. "is certainly a

family relationship that is worth preserving."

{¶ 56} This is not the typical permanent custody case. However, as the record

indicates, Grandmother, who lives in a two-bedroom townhouse, was already overly

committed to taking care of D.E.'s four older siblings, all of whom are under the age of ten.

Although Grandmother disputes the juvenile court's finding she was overly committed, the

record indicates Grandmother specifically testified that it was "beyond" a full-time job to take

care of D.E.'s four older siblings. Grandmother also testified that "it just never stops. * * *

We don't have time, and, just you know." Therefore, by her own admission, it is clear that

adding an additional child like D.E. would do nothing more than create further strain on

Grandmother's ability to properly care for not only D.E.'s four older siblings, but also for

herself. Grandmother's claim otherwise lacks merit.

{¶ 57} The record also indicates Grandmother failed to follow the prescribed

visitation schedule and did not attend any of D.E.'s medical appointments after the juvenile

court granted her visitation with D.E. That Grandmother did not attend any of D.E.'s medical

appointments is significant given D.E.'s extensive medical issues that require D.E. be given

special attention. This includes D.E.'s recent diagnosis with cerebral palsy. Due to

Grandmother's taxing schedule with D.E.'s four older siblings, there is significant doubt that

D.E.'s needs would be met. Placing D.E. in an environment where D.E. may not receive

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the attention he so desperately needs to remain on track in his development would certainly

not be in D.E.'s best interest.

{¶ 58} Even if Grandmother had taken full advantage of her time with D.E., which

she did not, thereby lending further credence to the testimony that Grandmother did not

appear committed to D.E. like she was to D.E.'s four older siblings, the record indicates

D.E. exhibited negative behaviors after returning from his visits with Grandmother. For

instance, according to D.E.'s foster mother, D.E. would oftentimes return from his visits with

Grandmother in a "zombie like state" that took him some time to overcome. The record

further indicates Grandmother was argumentative with WCCS regarding D.E.'s care, a fact

Grandmother readily admits in her appellate brief. Specifically, as Grandmother stated as

part of her brief, it is "clear" from the record that there was some "hostility" and "unnecessary

conflicts" between herself and WCCS. We agree.

{¶ 59} Finally, as noted previously, of additional concern to WCCS and this court

alike is the fact that Grandmother initially disputed WCCS' reasons for removing D.E. from

Mother's care. As one case worker testified, "[i]t is a concern that um, that was not

recognized." While there is no dispute that Grandmother later changed her opinion after

being shown several photographs of D.E.'s malnourished, frail body taken in the days

immediately after D.E.'s removal, Grandmother's initial refusal to accept that D.E. was in

need of immediate medical attention calls into question the veracity of Grandmother's claim

that she had spent several weeks helping Mother care for D.E. after he was born. Again,

as this court noted above, the fact that Grandmother initially disputed WCCS' reasons for

removing D.E. from Mother's care is troubling, particularly when considering Grandmother

has since been granted legal custody of D.E.'s four older siblings.

Conclusion

{¶ 60} In light of the foregoing, although this case was closer than most permanent

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custody cases reviewed by this court, we nevertheless find no error in the juvenile court's

decision granting the guardian ad litem's motion for permanent custody. This is true even

though Father and Grandmother love D.E. and have established a clear bond with D.E.

Although a strong bond may very well exist, that is but one factor to be considered when

determining the best interest of a child in a permanent custody proceeding. In re A.T.-D.,

12th Dist. Butler Nos. CA2015-03-059, CA2015-03-060, and CA2015-04-068, 2015-Ohio-

2579, ¶ 30. The juvenile court, just like this court, must act in a manner that places D.E.'s

best interest above all else. "A child's best interests are served by the child being placed

in a permanent situation that fosters growth, stability, and security." In re Keaton, 4th Dist.

Ross Nos. 04CA2785 and 04CA2788, 2004-Ohio-6210, ¶ 61. The juvenile court's decision

in this case does just that. Therefore, because we find no error in the juvenile court's

decision to grant the guardian ad litem's motion for permanent custody, thereby denying

both Father and Grandmother's motions for legal custody, Father's and Grandmother's

assignments of error are without merit and overruled.

{¶ 61} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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