In re S.K.

[Cite as In re S.K., 2019-Ohio-2278.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

FAYETTE COUNTY

IN RE: :

: CASE NOS. CA2018-11-025
S.K., et al. CA2018-11-026
:
OPINION
: 6/10/2019

:

APPEAL FROM FAYETTE COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. AND20160488 thru AND20160494, 17AND0289, and 18AND0271

Jess C. Weade, Fayette County Prosecuting Attorney, Sean M. Abbott, 110 E. Court Street,
1st Floor, Washington C.H., Ohio 43160, for appellee, Fayette County Children Services

Kathryn Hapner, 127 N. High Street, Hillsboro, Ohio 45133, for appellant, Mother 1

Steven H. Eckstein, 1208 Bramble Ave., Washington C.H., Ohio 43160, for appellant,
Mother 2

HENDRICKSON, P.J.

{¶ 1} Appellants, the mother of S.K., Ch.K., K.K., Jo.K., Ca.K., and B.B. ("Mother

1") and the mother of Ja.K., R.K., and L.K. ("Mother 2"), appeal the decision of the Fayette

County Court of Common Pleas, Juvenile Division, granting permanent custody of their nine

respective children to appellee, Fayette County Children Services ("FCCS"). For the
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reasons outlined below, we affirm the juvenile court's decision.

The Parties

{¶ 2} There are nine children at issue in this case. Mother 1 is the mother of S.K.,

born May 1, 2006, Ch.K, born October 12, 2007, K.K., born December 25, 2009, Jo.K., born

October 3, 2011, Ca.K., born August 27, 2013, and B.B., born May 15, 2016. Mother 2 is

the mother of Ja.K., born June 24, 2016, R.K., born May 20, 2017, and L.K., born May 8,

2018. With the exception of B.B., the other eight children were all fathered by the same

man ("Father"). Neither Father nor B.B.'s father is a party to this appeal.

{¶ 3} The record indicates Mother 1 and Father are married. Father, however, is

now in a relationship with Mother 2. Although now separated, the record also indicates

Mother 1, Mother 2, and Father had all lived together with the children in the same home.

And, after being evicted from that home, Mother 1, Mother 2, and Father all moved into a

homeless shelter with the children. Mother 1 now lives with her boyfriend in a four-bedroom

duplex, whereas Mother 2, who has been diagnosed with depression and anxiety, and

Father, who has been diagnosed as bipolar, live with a disabled couple in a one-bedroom

apartment.

FCCS's Complaints and the Juvenile Court's Adjudications and Dispositions

{¶ 4} On August 30, 2016, FCCS filed six complaints alleging Mother 1's six

children, S.K., Ch.K., K.K., Jo.K., Ca.K., and B.B., were neglected and dependent children.

FCCS also filed a complaint alleging Mother 2's then only child, Ja.K., was a neglected and

dependent child. In support, FCCS alleged it had received reports that the children were

seen "unsupervised around town and begging for food." Upon contacting Mother 1, Mother

2, and Father, FCCS alleged Mother 1 and Mother 2 claimed their respective children were

with a "friend." Mother 1 and Mother 2, however, only knew "the person's first name with

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no idea of her last name or even the street where she lived."

{¶ 5} FCCS also alleged that Mother 1, Mother 2, and Father had recently been

evicted from Mother 1's home where they lived with their then seven respective children.

As noted above, upon being evicted, FCCS alleged the entire family moved into a homeless

shelter. However, "the shelter stated they did not supervise or discipline any of the children

and the shelter removed the family * * * for not following the rules." Upon being removed

from the homeless shelter, FCCS alleged "the family has moved from house to house" and

that the children went back out on the streets begging for food.

{¶ 6} FCCS alleged Mother 2 had since left Ja.K. with his grandfather. The child's

grandfather, however, did not have any of the necessary supplies to take care of Ja.K.

FCCS also alleged that Ja.K.'s grandfather could not properly care for the child due to a

recent car accident. Due to the child's appearance, FCCS further alleged that it was

concerned about Ja.K.'s health and well-being in that he appeared "to be failure to thrive."

These concerns were further exacerbated by the fact Mother 2 only had one bottle to feed

Ja.K, "which was not clean." FCCS also alleged that while feeding Ja.K., Mother 2 "had to

remove objects from the bottle, and [Ja.K.] did not continue to drink the bottle."

{¶ 7} FCCS alleged that it had also received reports of domestic violence between

Mother 1, Mother 2, and Father. FCCS further alleged the children "have received no

medical attention and have not been enrolled in school." This includes Ja.K. who FCCS

alleged Mother 2 had not taken to see a doctor since his birth. Concluding, FCCS alleged

that Father was reportedly suffering from mental health issues, whereas Mother 2 "admits

she suffers from post-partum depression." Due to these concerns, FCCS alleged there was

"a present and ongoing threat of harm" to the children.

{¶ 8} Upon receiving FCCS's complaints, the juvenile court granted FCCS's request

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for emergency temporary custody of all seven children. Three of the children were then

placed with relatives, whereas the other four children were placed in foster care. Following

a hearing on the matter, the juvenile court issued an entry detailing the facts and

circumstances that led to the children's removal. As noted by the juvenile court, this

included concerns from FCCS regarding the parties' subpar living conditions,

homelessness, and the "lack of supervision of the children." The juvenile court also noted

that the five oldest children all had headlice upon their removal and that "[t]he four oldest

children are school age but had not been enrolled in school, despite the fact that the school

year had already commenced." The juvenile court further noted that Mother 1 and Mother

2 had both reported that Father had anger issues.

{¶ 9} On September 28, 2016, a guardian ad litem was appointed for the children.

Approximately one month later, the juvenile court adjudicated all seven children as

dependent. A case plan was then established. The case plan required each parent to

obtain and maintain stable housing, employment, and verifiable income, as well as

complete parenting classes and any necessary mental health treatment. The juvenile court

thereafter issued a dispositional decision that awarded temporary custody of the children to

FCCS. The juvenile court's corresponding entry noted that "[t]he parents have not made

much progress on their case plans." The juvenile court also noted that many of the children

exhibited behavioral issues upon their removal from their respective parents' care. This

includes two of the children killing a rabbit, as well as numerous instances of lying and

stealing.

{¶ 10} On May 16, 2017, the juvenile court held a review hearing. Following this

hearing, the juvenile court issued an entry noting that five of the children were now placed

in foster care, whereas two of the children were placed with relatives. The juvenile court

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also noted that the children's respective parents had completed parenting classes and that

both Father and B.B.'s father were employed. Mother 1, however, "was working but lost

her job last month." The juvenile court further noted that Mother 2, who was not working at

that time, was then pregnant with what would become Father's seventh child, R.K.

{¶ 11} In addition to these findings, the juvenile court noted that Mother 1, Mother 2,

and Father had not yet completed their required mental health assessments and that Mother

2 and Father had missed their last two scheduled visits with the children. The juvenile court

also noted in regard to the possibility of the children being returned to their respective

parents:

The agency does not believe that the children can be returned
home at this time. [Father] has not addressed his mental health
issues. [Mother 2] has not shown that she can provide for
herself. She is the victim of domestic violence from [Father].
[Mother 1] and [B.B.'s father] each have housing issues.

{¶ 12} On May 20, 2017, Mother 2 gave birth to R.K. Later that day, FCCS filed a

complaint alleging R.K. was a dependent child. In support, FCCS noted that R.K.'s older

brother, Ja.K., was then in its temporary custody and had been for nearly a year. FCCS

also alleged that both Mother 2 and Father had still not completed their required mental

health assessments. FCCS alleged the same was true in regard to Father's domestic

violence classes. FCCS further alleged that Mother 2 and Father "had no food or

belongings in their home with which to properly care for a newborn baby" and that they were

then "sleeping in the same hospital bed with [R.K.] in the bed."

{¶ 13} On May 23, 2017, the juvenile court granted emergency temporary custody

of R.K. to FCCS. Approximately two weeks later, the juvenile court issued a judgment entry

that addressed its prior emergency order regarding R.K. As part of this entry, the juvenile

court noted that Mother 2 and Father had completed their parenting classes and had

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obtained housing. The entry also noted that Father had obtained employment through a

temporary agency. But, as noted by the juvenile court, Father "ha[d] not been employed

there long enough to demonstrate financial stability." The juvenile court further noted in

regard to Father's mental health:

The case plan required [Father] to get a mental health
assessment and follow up on any recommendations. He has
self-reported being diagnosed with schizophrenia and multi-
personality disorder. The two mothers of his children, and other
relatives have reported [Father] to be the perpetrator of physical
and verbal domestic violence. [Father] has given conflicting
accounts of how long he has gone without taking his mental
health medication. He reported that he was only off his
medication for two weeks, that he sees a doctor * * * and that
he gets his medication at emergency rooms. Mental health
reports [note] that [Father] has been off his medication since
2015. He has not submitted any documentation that he has had
a mental health assessment or undergone any counseling.

{¶ 14} On July 6, 2017, the juvenile court adjudicated R.K. a dependent child.

Approximately five weeks later, the juvenile court issued a dispositional decision that

awarded temporary custody of R.K. to FCCS. The juvenile court also appointed R.K. with

a guardian ad litem. Several months later, following another review hearing, the juvenile

court issued an entry that noted the parties had stipulated that temporary custody of all eight

of their children should remain with FCCS "to allow the parents to have more time to work

their case plans."

{¶ 15} The guardian ad litem submitted a report with the juvenile court that same

day. As part of that report, the guardian ad litem noted in regard to Mother 1:

One of the mothers, [Mother 1], now has a home with her
boyfriend. They live in a duplex. They want to move the
boyfriend's mother out of the nursing home and into the other
side of the duplex. [Mother 1] wants to be the caregiver for the
boyfriend's mother who is morbidly obese and missing one leg.
The boyfriend's mother also has her own seven page history
with the agency. [Mother 1] is working at Bob Evans and making
approximately $100 per week. When [Mother 1] visits the

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children, she is responsible for bringing them dinner. She
usually does not provide enough food for all the children, i.e.
one bag of pizza rolls for [her six] kids.

{¶ 16} The guardian ad litem also noted in regard to Mother 2 and Father:

[Father and Mother 2] are still together. They had joined the
traveling fair and moved to Tennessee. They would travel from
Tennessee once a week to attend their visit. They have
returned to Ohio and live in a one-bedroom home with two other
people [Father] refers to as "Aunt and Uncle." The Aunt has a
toilet chair in the middle of the living room and uses a walker.
The Aunt told the worker that the children can reside there with
them and they would sleep in their bedroom in between the
hospital bed. [Father and Mother 2] work at Kroger stocking
shelves. They work approximately 10 hours per week. They
have told the worker that they have been approved to purchase
a nine-bedroom home.

{¶ 17} Although informing FCCS that they were approved to purchase a nine-

bedroom home, the record indicates Father later notified FCCS that he and Mother 2 never

purchased the home because it was sold to someone else.1

FCCS's Motions for Permanent Custody and Permanent Custody Hearing

{¶ 18} On March 20, 2018, FCCS moved for permanent custody of the parties' then

eight children; S.K., Ch.K., K.K., J.K., J.K., Jr., Ca.K., B.B., Ja.K., and R.K. In support,

FCCS alleged the oldest seven children had been in its temporary custody for 12 months

of a consecutive 22-month period. FCCS also alleged that all eight of the children could

not be placed with any of their respective parents within a reasonable time or should not be

placed with any of their parents. FCCS further alleged that granting it permanent custody

of the children was in the children's best interest. Shortly after moving for permanent

custody, Mother 2 gave birth to Father's eighth child, L.K. Considering it had already moved

for permanent custody of L.K.'s eight other siblings, FCCS also requested permanent

1. We note that the record contains additional evidence indicating there are no nine-bedroom homes in Fayette
County or the surrounding areas.
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custody of L.K.

{¶ 19} On August 3, 2018, the juvenile court held a hearing on FCCS's nine requests

for permanent custody. During this hearing, the juvenile court heard testimony from an

ongoing caseworker assigned to the children's nine cases, the children's foster parents, as

well as Mother 1, Mother 2, and Father. As part of this hearing, the caseworker testified

that she was concerned with Mother 1 reunifying with her six children. Specifically, as the

caseworker testified she was concerned with Mother 1's "ability to continue to maintain

having all six children in the home," as well as "her counseling, her employment, keeping

up with the rent and her house." And, as it relates to Mother 2, the caseworker testified she

was concerned with Mother 2's employment, housing, and lack of continued mental health

treatment. This included the caseworker testifying that Mother 2 had not "stayed at any

employment more than two or three months. It's all been very part time at best."

{¶ 20} Following this hearing, the juvenile court issued a decision granting FCCS

permanent custody of all nine children. In support, the juvenile court found that seven of

the children had been in the temporary custody of FCCS for at least 12 months of a

consecutive 22-month period. The juvenile court also found that all nine children needed a

legally secure permanent placement that they could achieve only through a grant of

permanent custody to FCCS. The juvenile court further found the children could not be

placed with any of their respective parents within a reasonable time and should not be

placed with any of their parents. Therefore, because the children had all improved since

their removal from their respective parents' care, the juvenile court found it proper to grant

FCCS permanent custody of the children.

Juvenile Court's Best Interest Findings

{¶ 21} When considering the testimony and evidence presented, the juvenile court

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found it was in the children's best interests to grant FCCS's motions for permanent custody.

In reaching this decision, the juvenile court initially found Mother 1, Mother 2, and Father

had regularly visited with their respective children. The juvenile court also found Mother 1

and Father were bonded to their children. But, as for Mother 2, the juvenile court found she

"appears to spend a disparate amount of time with her youngest child [L.K.], but is

interacting with all of her children." The juvenile court further found that all nine children

were "getting along well" in their respective foster placements.

{¶ 22} Next, regarding the children's wishes, the juvenile court found most of the

children were too young to express their wishes. The juvenile court, however, noted K.K.

had expressed her desire to stay with her foster parents. The juvenile court also noted the

guardian ad litem's report that recommended the juvenile court grant permanent custody to

FCCS. The guardian ad litem reached this decision upon noting the following in regard to

Mother 1:

One of the mothers, [Mother 1], has a home with her boyfriend
* * *. She started a relationship with the man after the removal
of the children. The children do not know [the boyfriend]. [The
boyfriend] has two children of his own that are currently being
raised by a grandmother. They live in a duplex. They were
renting both sides of the duplex and were remodeling it to make
one large home. However, they have been evicted from one
side of the duplex and have to put the walls back up. The side
of the duplex they live in is only 2 bedrooms. According to the
caseworker, there is no heat source in the home.

{¶ 23} The guardian ad litem also noted in regard to Mother 1's employment, income,

and ability to care for her six children:

[Mother 1] continues to work at Bob Evans and making
approximately $100 per week. When [Mother 1] visits the
children, she is responsible for bringing them dinner. She
usually does not provide enough food for all the children, i.e.,
one bag of pizza rolls for [six] kids, one casserole dish. [Mother
1] does not have transportation. When speaking with the
caseworker she did not have a plan on how she would transport

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six kids to the doctor or daycare. She did not have a plan as to
who would watch [the] kids while she worked.

{¶ 24} The guardian ad litem further noted in regard to Mother 2 and Father:

[Father and Mother 2] are still together. They still reside with a
disabled couple in a one bedroom home. At the last hearing
[Father] told the worker they were approved to purchase a nine
bedroom home. That has not occurred. [Father and Mother 2]
do not have steady stable income. [Father] reports working at
the fair last week. They have had several short-term jobs during
the pendency of this case. They did have appropriate housing
at one point in the case (about 1 1/2 years ago) but were evicted
within 90 days.

{¶ 25} The guardian ad litem also noted specifically in regard to Father that he

"admitted to following the caseworker home and knowing where she lives. She had to tell

[Father] to leave her and her family alone." The guardian ad litem further noted an incident

where Father became upset while visiting the children "and said that he would support his

kids until the day he dies and said that he wasn't scared of anybody and he would go outside

(to foster dad) and fight him if he had to." Therefore, when considering the best interests

of the children, the guardian ad litem concluded that "[n]one of the parents are in any

position to have all of the children placed with them."

{¶ 26} As it relates to the children's custodial history, the juvenile court found the

oldest seven children had been in the temporary custody of FCCS for at least 12 months of

a consecutive 22-month period beginning on August 30, 2016. But, as it relates to R.K.,

the juvenile court found that child had been in the temporary custody of FCCS since May

23, 2017, three days after the child's birth. And, as it relates to L.K., the juvenile court found

that child had been in the temporary custody of FCCS since May 9, 2018, the day after the

child's birth.

{¶ 27} Next, when considering the children's need for a legally secure permanent

placement, the juvenile court found all nine children could only achieve such a placement

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through a grant of permanent custody to FCCS. Although not specific, the juvenile court

reached this decision based on a number of factors. For instance, the juvenile court found

Mother 1 and Father had previously been subject to two safety plans prior to the removal

of their six children. These safety plans were deemed necessary after "some of their

children were selling water to people passing on State Route 38." When this incident was

investigated, the juvenile court noted that the family home was found to be in a "deplorable

state" and that the children had headlice. Mother 1 was ultimately convicted of

misdemeanor child endangerment resulting from this investigation.

{¶ 28} The juvenile court found these conditions did not improve during a subsequent

investigation into Mother 1's living conditions. Specifically, as the juvenile court found, the

family home was still "deplorable" with "no food in the home" and the children had again

contracted headlice. The juvenile court also noted that Mother 1 had then entered into

another case plan due to the "conditions of the home, lack of food, and lack of supervision

of the children." As part of this case plan, an aide was sent to Mother 1's home to assist

her with the children. But, as the juvenile court found, "[i]f the aide was not present on any

given day, the following day the home would be in a bad state again."

{¶ 29} Mother 1 and Father eventually ended their relationship. The record indicates

that Father then moved into Mother 1's home with Mother 2. Mother 1, however, was shortly

thereafter evicted from the home with Mother 2, Father, and the children. This is just one

of several other evictions involving Mother 1. Although somewhat unclear, the record

indicates that upon Mother 1 being evicted that Mother 1, Mother 2, and Father all moved

into a homeless shelter with the children. But, due to the children's bad behavior, the family

was asked to leave within two days of their arrival. Upon the parties' removal from the

homeless shelter, the juvenile court noted the children were again found on their own "when

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more than one person called Children Services about small children coming in to

businesses * * * and begging for food."

{¶ 30} Continuing, he juvenile court found:

When [Mother 1] was eventually located and confronted about
the location of the children, she could only give a first name of
who the children were supposed to be with. [Mother 1, Mother
2, and Father] and the children had been staying with various
people. The two young babies, B.B. and Ja.K., were not being
fed properly. The older children had headlice. Their hair had
been "buzzed." The four oldest children were school age, but
had not been enrolled, even though the school year had
commenced.

{¶ 31} Next, the juvenile court found that while Mother 1 had obtained a mental

health assessment, Mother 1's counselor had "not heard from, nor seen [Mother 1]" for

many months. But, on a positive note, the juvenile court noted that Mother 1 had completed

parenting classes and obtained housing. However, as it relates to that housing, the juvenile

court noted that Mother 1 lives in a duplex with her boyfriend and his disabled mother. The

juvenile court also noted that – despite both of them working full-time – Mother 1 and her

boyfriend were oftentimes late on their rent payments. This, according to the case worker's

testimony, was a "huge concern" since there were "just two people there, versus adding six

children[.]" This was in addition to the caseworker's "concerns about the home's heating

source being one, recently connected, gas fireplace and portable heaters."

{¶ 32} The juvenile court made additional findings in regard to Mother 2 and Father.

As the juvenile court found:

Both [Father and Mother 2] have a work history of changing jobs
on a frequent basis. Most of their jobs have been part-time.
They usually work at the same place at the same time, and
leave the employment at the same time. Most recently they
worked at Little Caesar's Pizza. They stated they have new jobs
lined up at Candleite. Previously, [Father] was at Chappel Door
for one week. He works at Yusa and WCR. They both worked
at McDonald's, Kroger, and worked at a travelling carnival.

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None of these jobs lasted more than a few months, some as
brief as a few days.

{¶ 33} Concluding, due to their unstable employment and income, the juvenile court

found neither Mother 2 nor Father had exhibited an ability to meet the basic needs of their

children. This, as the juvenile court found, was further aggravated by the fact that Mother

2 and Father were then living with a disabled couple in a one-bedroom apartment "where

there is not enough room for the children to reside there." The record indicates the

apartment smelled like animal urine and that Mother 2 and Father were sleeping in the

apartment's living room, but were thinking of converting the closet into a bedroom. And,

similar to Mother 1, the juvenile court found both Mother 2 and Father were in arrears on

their child support obligations.

{¶ 34} The juvenile court made further findings regarding all nine children.

Specifically, the juvenile court found S.K. was very smart, but that she was trying to

sabotage herself by completing her homework only to then throw it away and not turn it in

at school. The juvenile court also found S.K. "could never relinquish the caretaker role she

had assumed when the family was together." As it relates to Ch.K., however, the juvenile

court found he was well-behaved, but that he was receiving counseling "as he is very

emotional." The juvenile court also found Ch.K. liked school. The juvenile court further

found that Ch.K. was placed with the same foster family as Jo.K., who the juvenile court

noted was "doing well" in his foster home. The juvenile court also found Jo.K.'s behavior

had improved since being placed in foster care.

{¶ 35} As it relates to K.K., the juvenile court found K.K. was the most improved of

all nine children. The juvenile court based this decision upon finding K.K. had advanced

from being "a very low performer" in kindergarten to being "advanced" now that she was in

first grade. The juvenile court also found K.K. had "many rotten teeth" when she was

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removed from Mother 1's care, but that she had since gone to the dentist and received caps

on several of her teeth. The juvenile court further found that K.K. was in a relative placement

with B.B., who the juvenile court found was a "happy toddler." The juvenile court also found

B.B. was "doing well" and meeting his developmental milestones.

{¶ 36} In regard to the four remaining children, Ca.K. Ja.K., R.K., and L.K., the

juvenile court found these children were all placed in the same foster home. The juvenile

court found Ca.K. had a "very rough" start upon being placed in foster care. But, although

he initially threw tantrums and had a hard time communicating, the juvenile court found

Ca.K. was "doing better now." As for Ja.K., the juvenile court found he was "doing fairly

well. He is not talking as well as a two-year old should, but he is developing in other things,

such as walking on time." The juvenile court further found that the two youngest children,

R.K. and L.K., were both meeting their developmental milestones.

Appeal

{¶ 37} Mother 1 and Mother 2 now appeal from the juvenile court's decision granting

permanent custody of their nine respective children to FCCS, collectively raising four

assignments of error for review. In support, Mother 1 and Mother 2 primarily argue the

juvenile court's decision was not supported by sufficient evidence and was against the

manifest weight of the evidence. Mother 1 and Mother 2 also challenge the juvenile court's

decision finding it was in the children's best interest to grant permanent custody to FCCS.

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

Permanent Custody Standard of Review

{¶ 38} 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

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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.

This court will therefore reverse a juvenile court's decision to grant permanent custody only

if there is a sufficient conflict in the 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.

{¶ 39} 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.'" In re

S.M., 12th Dist. Warren Nos. CA2018-08-088 thru CA2018-08-091 and CA2018-08-095

thru CA2018-08-097, 2019-Ohio-198, ¶ 16, quoting 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,

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most favorable to sustaining the verdict and judgment." Eastley at ¶ 21.

Two-Part Permanent Custody Test

{¶ 40} 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, pursuant to R.C. 2151.414(B)(1)(a) to (e), 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 to satisfy the second prong of the two-part

permanent custody test. In re A.W., 12th Dist. Fayette No. CA2014-03-005, 2014-Ohio-

3188, ¶ 12.

Best Interest Standard

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

the juvenile court is required to consider certain enumerated factors under R.C.

2151.414(D)(1). In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038,

2018-Ohio-3341, ¶ 32. These factors include, but are not limited to, (1) the interaction and

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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 factors it deems relevant to the child's best interest." In re A.J., 12th Dist. Clermont

No. CA2018-08-063, 2019-Ohio-593, ¶ 24, citing 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").

Mother 1's Assignment of Error No. 1:

{¶ 42} THE TRIAL COURT'S DECISION TO GRANT PERMANENT CUSTODY

WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AND THE COURT ABUSED ITS

DISCRETION IN MAKING SUCH A GRANT OF PERMANENT CUSTODY.

{¶ 43} In her first assignment of error, Mother 1 argues the juvenile court erred by

granting FCCS's motion for permanent custody of her six children, S.K., Ch.K., K.K., Jo.K.,

Ca.K., and B.B. Mother 1 supports her claim by arguing the juvenile court's decision finding

it was in her children's best interest to grant FCCS permanent custody was not supported

by sufficient evidence and was against the manifest weight of the evidence. We disagree.

{¶ 44} When considering the juvenile court's best interest findings outlined above,

we find no error in the juvenile court's decision to grant permanent custody to FCCS. Simply

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stated, contrary to Mother 1's claims, the juvenile court's decision was neither "unfounded"

nor unsupported by the record.2 The record instead indicates that significant concerns

remain regarding Mother's housing and her ability to provide financially for her six children.

There were also concerns regarding Mother 1's mental health when considering Mother 1's

counselor had "not heard from, nor seen [Mother 1]" for many months. In turn, while there

was some indication that Mother had taken steps towards reunification, we find the record

is nevertheless clear that there are substantial hurdles that Mother 1 still needs to address.

Therefore, due to the uncertainty regarding Mother 1's housing, income, and untreated

mental health issues, we find no error in the juvenile court's decision finding a grant of

permanent custody to FCCS was the best chance for her six children to achieve the stable

family home that they need. Mother 1's claims otherwise lack merit.

{¶ 45} We also find no merit to Mother 1's claim the juvenile court "mainly ignored"

the positive aspects of her case and instead concentrated instead on the negative. After

taking into consideration the evidence presented and the weight to be given to the

witnesses' testimony, the juvenile court found it was in the children's best interest to grant

permanent custody to FCCS. We agree. And, while we have no doubt that Mother 1 would

like to be reunified with her children, "'[t]he law does not require the court to experiment with

a child's welfare to see if the child will suffer great detriment or harm.'" (Internal brackets

omitted.) In re B.C., 12th Dist. Warren Nos. CA2018-03-024 and CA2018-03-027, 2018-

Ohio-2673, ¶ 30, quoting In re R.S.-G., 4th Dist. Athens No. 15CA2, 2015-Ohio-4245, ¶ 53.

This is because "[a] child's life is not an experiment that can be left to chance." In re A.J.,

12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 40.

2. Mother 1 supports this claim, in part, by arguing the juvenile court "did not even mention the fact that [she]
completed her parenting classes[.]" The record does not support this claim. The juvenile court in fact
specifically stated within its decision that Mother 1 did complete her parenting classes.
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{¶ 46} Mother 1's six children, just like all other children, are entitled to have stability

in their lives by being placed in a legally secured permanent placement. In re J.B., 12th

Dist. Butler No. CA2018-08-175, 2018-Ohio-5049, ¶ 35. "'A child's best interests are served

by the child being placed in a permanent situation that fosters growth, stability, and

security.'" In re D.E., 12th Dist. Warren Nos. CA2018-03-035 and CA2018-04-038, 2018-

Ohio-3341, ¶ 60, quoting In re Keaton, 4th Dist. Ross Nos. 04CA2785 and 04CA2788,

2004-Ohio-6210, ¶ 61. When considering FCCS's ongoing concerns regarding Mother 1's

home, her capacity to provide financially for her children, and her mental health issues, the

juvenile court's decision to grant FCCS permanent custody is the best chance for these

children to obtain that stability and security within their lives. Therefore, contrary to Mother

1's claims, the juvenile court did not err by granting permanent custody of her six children

to FCCS. Accordingly, finding no error in the juvenile court's decision, Mother 1's first

assignment of error lacks merit and is overruled.

Mother 1's Assignment of Error No. 2:

{¶ 47} THE TRIAL COURT ERRED IN BY FINDING IT TO BE IN THE BEST

INTEREST OF THE CHILDREN TO GRANT PERMANENT CUSTODY WITHOUT

FINDING THAT APPELLANT IS UNFIT OR UNSUITABLE TO PARENT HER CHILDREN.

{¶ 48} In her second assignment of error, Mother 1 argues the juvenile court erred

by granting permanent custody to FCCS without first finding she was an unfit or unsuitable

option to parent her six children. We disagree.

{¶ 49} Each of Mother 1's six children had been in the temporary custody of FCCS

for at least 12 months of a consecutive 22-month period at the time FCCS moved for

permanent custody. Inherent within a 12-of-22 month finding rests the finding that she was

unable, unfit, or unsuitable to care for her children. In re A.J.P.-H., 11th Dist. Lake Nos.

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2017-L-019 thru 2017-L-021, 2017-Ohio-5515, ¶ 42. "If the child has been placed in a

children services agency's temporary custody for at least twelve months of the prior twenty-

two months, some reason must exist why the child has not been in the parent's care. The

reason normally would be because the parent has been unable to demonstrate that the

parent is able, suitable, or fit to care for the child." In re A.J., 11th Dist. Trumbull No. 2010-

T-0041, 2010-Ohio-4553, ¶ 42, citing In re Workman, 4th Dist. Vinson No. 02CA574, 2003-

Ohio-2220, ¶ 39. Therefore, because the juvenile court was not required to find Mother 1

was an unfit or unsuitable option to parent her six children prior to granting permanent

custody to FCCS, Mother 1's second assignment of error also lacks merit and is overruled.

Mother 2's Assignment of Error No. 1:

{¶ 50} THE DECISION OF THE TRIAL COURT GRANTING PERMANENT

CUSTODY TO FAYETTE COUNTY CHILDREN SERVICES IS NOT SUPPORTED BY

SUFFICIENT EVIDENCE.

Mother 2's Assignment of Error No. 2:

{¶ 51} THE DECISION OF THE TRIAL COURT GRANTING PERMANENT

CUSTODY TO FAYETTE COUNTY CHILDREN SERVICES IS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶ 52} In her two assignments of error, Mother 2 argues the juvenile court erred by

granting FCCS's motions for permanent custody of her three children, Ja.K., R.K., and L.K.

Similar to Mother 1 above, Mother 2 supports her claim by arguing the juvenile court's

decision finding it was in her children's best interest to grant FCCS permanent custody was

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

We again disagree.

{¶ 53} When considering the juvenile court's best interest findings outlined above,

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we find no error in the juvenile court's decision to grant FCCS's motions for permanent

custody of Mother 2's three children. Mother 2 nevertheless claims the juvenile court's

decision was improper when considering she "had plans for the near future" that would be

more than adequate to provide for her children. This includes getting a "better job and

better housing." Mother 2 also argues the juvenile court's decision was improper since her

"visitations were going well and she, likewise, would like to have permanent custody of her

three children." Therefore, when considering her and Father's testimony, Mother 2 argues

the juvenile court gave "undue credit to the testimony of the caseworker and the foster

parent, especially the statement that the foster parents were going to adopt all three

children." We find no merit to Mother 2's claim.

{¶ 54} Given the facts of this case, this court questions whether Mother 2 actually

had planned to get a better job and better housing as she now claims. This is true despite

Mother 2's testimony to the contrary. But, even when accepting Mother 2's testimony as

true, Mother 2 never took the necessary steps to obtain either a better job or better housing

so as to be reunified with her three children. Mother 2 had well over a year to turn her life

around after her oldest child, Ja.K., was removed from her care. Yet, rather than focusing

on what was needed to reunify with her children, Mother 2 instead jumped from job to job

and house to house without demonstrating any ability to provide stability and security for

her children. A parent "'is afforded a reasonable, not an indefinite, period of time to remedy

the conditions causing the children's removal.'" In re A.M.L., 12th Dist. Butler No. CA2013-

01-010, 2013-Ohio-2277, ¶ 32, quoting In re L.M., 11th Dist. Ashtabula No. 2010-A-0058,

2011-Ohio-1585, ¶ 50.

{¶ 55} Mother 2, given a reasonable time to do so, failed to remedy the conditions

that led to her children's removal from her care. When considering Mother 2 had not

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completed most of her required case plan services, the blame for Mother 2 having now lost

custody to all three of her children cannot be attributed to anything other than Mother 2's

own conduct before, during, and after her children were removed from her care. Mother 2's

claims that she is now ready to take steps towards reunification with her children is simply

too little, too late. That is to say providing Mother 2 with any additional time at this juncture

would do nothing more than prolong the inevitable. Therefore, contrary to Mother 2's

claims, the juvenile court did not err by granting permanent custody of her three children to

FCCS. Accordingly, finding no error in the juvenile court's decision, Mother 2's two

assignments of error likewise lack merit and are overruled.

Conclusion

{¶ 56} The juvenile court did not err in its decision granting FCCS permanent custody

of Mother 1's and Mother 2's nine children, S.K., Ch.K., K.K., Jo.K., Ca.K., B.B., Ja.K., R.K.,

and L.K. The juvenile court, just like this court, must act in a manner that places the

children's best interest above all else. The juvenile court's decision does just that. Simply

stated, when considering the uncertainty surrounding both Mother 1's and Mother 2's

housing, employment, income, and mental health, the juvenile court's decision to grant

permanent custody of the children to FCCS was in the children's best interest. Therefore,

because the juvenile court's decision granting FCCS's motions for permanent custody was

proper, Mother 1's and Mother 2's four total assignments of error lack merit and are

overruled.

{¶ 57} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

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