In re G.M.

[Cite as In re G.M., 2022-Ohio-3687.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

IN RE: :

G.M., et al. : CASE NO. CA2022-05-053

: OPINION
10/17/2022
:

:

:

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case Nos. JN2019-0237, JN2019-0239, JN2019-0240, and JN2020-0142

Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa Concannon, Assistant
Prosecuting Attorney, for appellee.

Garrett Law Offices, and Dawn S. Garrett, for appellant.

Legal Aid Society of Southwest, Ohio, LLC, and Jamie Landvatter, Guardian ad Litem.

HENDRICKSON, J.

{¶1} Appellant, the mother of the four minor children in this case ("Mother"),

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

permanent custody of the children to Butler County Department of Job and Family Services,

Children's Services Division ("the Agency"). For the reasons that follow, we affirm the
 Butler CA2022-05-053

decision of the juvenile court.

{¶2} The three oldest children came to the attention of the Agency in March of

2019, shortly after Mother gave birth to twin girls J.M. and M.M. Just after her birth, J.M.

stopped breathing and required the placement of an NG tube for feeding. As a result, J.M.

required continued hospitalization. Hospital staff observed Mother co-sleeping with M.M.

while visiting with J.M. in the hospital, and advised Mother that co-sleeping was considered

a safety concern. Hospital staff requested Mother not to bring M.M. if she would be sleeping

while at the hospital, which resulted in Mother rarely visiting J.M. Due to the infrequent

visitation, hospital staff reported to the Agency that "the visits and demonstration of care

were not consistent enough for progress to be made."

{¶3} In addition to Mother's care and visitation of J.M., the Agency had concerns

regarding ongoing domestic violence between Mother and the children's father ("Father").1

In April 2019, Mother and the children moved in with maternal grandmother due to the

domestic violence between Mother and Father and the "deplorable condition" of their home

at that time. Approximately two weeks later, maternal grandmother kicked Mother and the

children out of her home, and they returned to live with Father.

{¶4} In May 2019, shortly after Mother and the children resumed living with Father,

the Agency filed a complaint alleging that the three children, G.M., M.M., and J.M., were

dependent based upon the above facts and that G.M. was behind on her immunizations.

After a hearing, the children were removed from the home and placed in the temporary

custody of the Agency.

{¶5} On July 19, 2019, G.M., M.M., and J.M. were adjudicated dependent and were

1. Father is the biological father of the four children involved in this case. Father was involved in case plan
services initially, but later executed a surrender of his parental rights in favor of the Agency. As such, Father
did not appeal from the juvenile court's decision and was not involved in these proceedings.

-2-
 Butler CA2022-05-053

placed together in the same foster home. A case plan was created for Mother with the goal

of reunification. Among other things, the case plan required Mother to engage in a domestic

violence assessment and establish a safe environment for herself and her children;

maintain and monitor her sobriety; and to obtain employment and stable housing. The case

plan was later amended to require a psychological evaluation and a parenting education

program. Mother was also referred to substance abuse services after testing positive for

methamphetamine and alcohol.

{¶6} The following year, in June 2020, Mother gave birth to the youngest child,

E.M. The day after E.M.'s birth, the Agency received a neglect and physical abuse

allegation regarding the child. Hospital staff reported that Mother and Father spent most of

their time at the hospital verbally assaulting each other, which interfered with Mother's ability

to feed E.M. There was one incident where hospital staff contacted security due to Father's

anger. The Agency also learned that Mother did not receive adequate prenatal care while

pregnant with E.M., and that the nurses had to educate Mother "several times on safe sleep"

after discovering Mother sleeping with the child while breastfeeding. Hospital staff further

informed the Agency they were concerned because Mother showed a lack of caring for her

child's needs. Based on the above, the Agency filed a complaint alleging that E.M. was

dependent.

{¶7} The Agency obtained temporary custody of E.M., and the child was placed in

the foster home with his siblings. Thereafter, E.M. was adjudicated dependent and the child

was added to Mother's existing case plan with a goal of reunification.

{¶8} Over the following year, Mother made some progress in her case plan.

However, despite completing some of the required case plan services, Mother failed to

demonstrate any long-term employment, had difficulty maintaining suitable housing, and

continued to engage in an on-again-off-again relationship with Father.

-3-
 Butler CA2022-05-053

{¶9} On April 12, 2021, the Agency moved for permanent custody of G.M., M.M.,

and J.M. A few months later, on July 22, 2021, the Agency moved for permanent custody

of E.M. A hearing on the motions was held before a magistrate in November 2021. Mother,

Mother's therapist, and the caseworker handling the children's case testified. Father did

not participate in the hearing, as he had previously agreed that awarding permanent

custody to the Agency was in his children's best interest and had executed a surrender of

his parental rights in favor of the Agency. The children's guardian ad litem ("GAL") also did

not testify, but engaged in cross-examination of the witnesses and filed a report with the

juvenile court recommending that permanent custody be granted to the Agency.

{¶10} On January 6, 2022, the magistrate issued a decision granting permanent

custody of the children to the Agency. In analyzing the best interest factors, the magistrate

found that, although Mother clearly loves her children, the children consider the foster

parents to be their parents. Mother was consistent in her visitation with the children,

however, her visits remained supervised at the highest level due to her struggles in

appropriately caring for the children in terms of structure and discipline. With the exception

of G.M., the oldest child, Mother does not appear to have a close relationship with the

children.

{¶11} The magistrate further found that the barriers preventing placement in

Mother's care have largely remained the same throughout the case, including her housing

instability, association with partners who are potentially abusive, mental health concerns,

and insufficient or unstable income. The magistrate detailed Mother's inability to address a

majority of those concerns, including continuing to engage in relationships with controlling

men and making little progress regarding her mental health condition and diagnoses of

schizophrenia and post-traumatic stress disorder. The magistrate also noted the

concerning nature of Mother's housing situation, and found that, since the children's

-4-
 Butler CA2022-05-053

removal in 2019, Mother had never been able to obtain and maintain a residence that would

be appropriate for her and the children. At the time of the hearing, Mother admitted she did

not have an appropriate place for the children to reside, and indicated she was residing with

friends at that time. Thus, the magistrate concluded granting permanent custody to the

Agency was in the children's best interest.

{¶12} Mother objected to the magistrate's decision, arguing that she had remedied

the issues initiating the case, and therefore, custody should have been granted to Mother.

After a hearing, the juvenile court overruled Mother's objections and adopted the

magistrate's decision in its entirety.

{¶13} Mother now appeals, raising the following assignment of error for our review:

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

THE CHILDREN IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND NOT

SUPPORTED BY SUFFICIENT EVIDENCE AS THE EVIDENCE DOES NOT SHOW THAT

PLACING THE CHILDREN IN THE AGENCY'S PERMANENT CUSTODY IS IN ANY OF

THE CHILDREN'S BEST INTERESTS.

{¶15} Mother argues that the juvenile court erred by granting permanent custody of

the children to the Agency.

{¶16} Before a parent's constitutionally protected liberty interest in the care and

custody of their children 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. "This

-5-
 Butler CA2022-05-053

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 L.S., 12th Dist. Brown Nos.

CA2019-03-001 and CA2019-03-002, 2019-Ohio-3143, ¶ 17, citing 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 C.S., 12th Dist.

Clinton No. CA2020-04-006, 2020-Ohio-4414, ¶ 15, quoting In re T.P., 12th Dist. Butler No.

CA2015-08-164, 2016-Ohio-72, ¶ 19.

{¶17} In determining whether a juvenile court's decision to grant a motion for

permanent custody is against the manifest weight of the evidence, 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. "In weighing the evidence,

there is a presumption in favor of the findings made by the finder of fact and evidence

susceptible to more than one construction will be construed to sustain the verdict and

judgment." In re M.A., 12th Dist. Butler No. CA2019-08-129, 2019-Ohio-5367, ¶ 15, citing

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

2015-Ohio-1343, ¶ 25, citing Eastley at ¶ 21.

{¶18} 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

-6-
 Butler CA2022-05-053

custody to the agency is in the best interest of the child, utilizing, in part, the factors set forth

in 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.

{¶19} In this case, the juvenile court found the children had been in the temporary

custody of the Agency for more than 12 months of a consecutive 22-month period at the

time the Agency filed its motions for permanent custody. This finding is not disputed by

Mother and is supported by the record, as G.M., M.M., and J.M. have been in the temporary

custody of the Agency since July 2019 and the Agency moved for permanent custody of

the children in April 2021. E.M., on the other hand, has been in the temporary custody of

the Agency since July 21, 2020, and the Agency moved for permanent custody of the child

on July 22, 2021. Instead, Mother disputes the juvenile court's decision finding that

permanent custody of the children to the agency was in the children's best interest.

{¶20} In determining whether permanent custody is in a child's best interest, R.C.

2151.414(D)(1) requires a court to consider the following five factors:

(a) The interaction and interrelationship of the child with the

-7-
 Butler CA2022-05-053

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, or 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 and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;

(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; [and]

(e) Whether any of the factors listed in R.C. 2151.414(E)(7) to
(11) apply in relation to the parents and child.

"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.

{¶21} Based upon its consideration of the R.C. 2151.414 factors, the juvenile court

found by clear and convincing evidence that it was in the children's best interest to grant

permanent custody to the Agency. On appeal, Mother argues the juvenile court's finding is

against the manifest weight of the evidence, and is not supported by clear and convincing

evidence, because the evidence established that an award of permanent custody to the

agency was not in the best interest of the children. Essentially, Mother claims an award of

permanent custody was unnecessary, as she had made sufficient progress in her case plan

services, had obtained employment, was working on housing, had addressed her mental

health issues, and wished to reunify with her children.

{¶22} After our review of the entire record, we find no merit to Mother's claims. The

-8-
 Butler CA2022-05-053

evidence and testimony presented at the permanent custody hearing revealed that Mother

made some progress on her case plan services, but overall failed to remedy the Agency's

primary concerns throughout the case. Regarding her mental health, the record reflects

Mother's mental health condition remained largely unaddressed at the time of the hearing.

Specifically, Mother received a psychological assessment with Children's Diagnostic Center

("CDC") in November 2019. During that assessment Mother stated, among other things,

that she felt the presence of demons, that the demons had threatened to harm her and her

children, that she had the power of telekinesis, and that she was being electronically

surveilled by the government. As a result of the assessment, Mother was diagnosed with

schizophrenia; alcohol use disorder, mild; cannabis use disorder, mild; and stimulant use

disorder, mild. Mother disagreed with the schizophrenia diagnosis but began counseling

services through CDC in February 2020. Mother was also prescribed medication to manage

her mental health diagnoses, which she eventually discontinued because she did not like

the side effects.

{¶23} In February 2021, after her therapist left CDC, Mother terminated her services

and began services at Butler Behavioral Health ("BBH") without a referral from the Agency.

Mother's therapist from BBH testified at the hearing and indicated Mother had attended

weekly sessions with him for approximately eight months, although there were weeks where

she did not attend. Mother's therapist explained that Mother's main diagnosis from BBH

was post-traumatic stress disorder. Like her schizophrenia diagnosis from CDC, Mother

disagreed with her post-traumatic stress disorder diagnosis. As a result, most of her

treatment and progress at BBH related to the external factors of this case, rather than

addressing her diagnosis. Mother's prior schizophrenia diagnosis was not discussed during

her treatment with BBH, as her therapist was unaware that Mother completed a

psychological evaluation with CDC prior to beginning services at BBH and her history of

-9-
 Butler CA2022-05-053

mental health services was not brought up during their sessions. Although the therapist

stated he did not identify any indications of schizophrenic behavior by Mother in their

sessions, he agreed that some of the statements Mother made during her evaluation with

CDC coincided with either paranoid schizophrenic thinking or methamphetamine use.

{¶24} Notably, after reviewing Mother's treatment plan with BBH, the children's

caseworker testified that the Agency remained concerned regarding Mother's mental

health. Specifically, the caseworker stated Mother had not addressed the Agency's

concerns regarding her initial psychological evaluation with CDC. Thus, although it is

evident that Mother received a psychological evaluation and has engaged in counseling

since February 2020, as required by her case plan, she has not remedied the Agency's

concerns regarding her mental health. That is, Mother has declined to acknowledge her

counselors' diagnoses and most of her recent time in counseling was focused on Mother's

setbacks in this case. Such counseling, while certainly helpful for Mother, is not indicative

of addressing the Agency's concerns regarding Mother's schizophrenia diagnosis or the

troubling comments she made during her initial evaluation with CDC.

{¶25} Additionally, despite maintaining various forms of employment throughout the

case, Mother had not obtained stable housing by the time of the permanent custody hearing.

Since the older children's removal in May 2019, Mother had lived with various family

members, in Father's work truck, with friends, in various hotels, and a three-bedroom

apartment for a short time. Two months prior to the hearing, Mother reported searching for

a residence with her then-paramour, Andrew, but indicated they were sleeping in a van and

in a tent in the meantime. At the time of the hearing, Mother still did not have independent

housing, and was residing at a homeless shelter. Despite Mother's testimony that she

planned to obtain housing within a few weeks of the hearing, the record does not reflect an

ability to do so. Rather, at the time of the hearing, Mother indicated the homeless shelter,

- 10 -
 Butler CA2022-05-053

which does not accept children, was her "best option," as she was unemployed at the time

of the hearing, without independent transportation, and did not have sufficient income to

pay for housing. Accordingly, the record is replete with examples of Mother's inability to

maintain stable or suitable housing throughout the case.

{¶26} The record also reflects Mother failed to remedy the Agency's concerns

regarding domestic violence. Mother testified that she was referred to and completed 25

sessions with New Perspectives Domestic Violence Group. However, simply because

Mother completed a domestic violence assessment in accordance with the case plan does

not necessitate a finding that Mother remedied the Agency's concerns regarding domestic

violence. Rather, it is well established that "the completion of case plan services alone

does not equate to, or necessitate, a finding that the parents have substantially remedied

the conditions that caused the removal of the child from the home." In re R.K., 12th Dist.

Warren Nos. CA2021-03-027 and CA2021-03-028, 2021-Ohio-3074, ¶ 24, citing In re S.M.,

12th Dist. Clermont No. CA2015-01-003, 2015-Ohio-2318, ¶ 24. "[A] parent can

successfully complete the requirements of a case plan, but not substantially remedy the

conditions that caused the children to be removed, as the case plan is 'simply a means to

a goal, but not the goal itself.'" Id., quoting In re E.B., 12th Dist. Warren Nos. CA2009-10-

139 and CA2009-11-146, 2010-Ohio-1122, ¶ 30.

{¶27} In this case, the record reflects that during her entire time with New

Perspectives, Mother remained in a romantic relationship with Father despite reporting that

he remained abusive and controlling. Shortly after terminating her relationship with Father,

Mother began a romantic relationship with Andrew, who also demonstrated controlling and

manipulative behavior towards Mother. In July 2021, Mother was charged with domestic

violence after an encounter with Andrew where he blocked Mother's exit from a room, and

Mother threatened him with a hammer. Mother pled guilty to disorderly conduct as a result

- 11 -
 Butler CA2022-05-053

of that incident.

{¶28} At the hearing, Mother acknowledged that Andrew demonstrated some

controlling behaviors that she considered "red flags," but testified she was still seeking

housing, employment, and transportation with Andrew at the time of the hearing. The

caseworker explained it was concerning that Mother remained in a relationship with

Andrew, despite his controlling behavior and the recent domestic violence incident.

Accordingly, notwithstanding Mother's completion of the domestic violence assessment and

the subsequent group sessions, the record demonstrates Mother continues to engage in

unsafe and tumultuous relationships.

{¶29} Like her domestic violence assessment, Mother also completed the required

parenting classes. However, due to her poor rating for participation and attitude during the

classes, the Agency remained concerned regarding her ability to parent the children.

According to the caseworker, Mother was not able to grasp the lessons and did not

demonstrate any improvement in her parenting skills during her visitation with the children.

In fact, despite consistently attending weekly visitation since the children's removal,

Mother's visitation with the children never progressed beyond the most restrictive level due

to her inability to meet the criteria for visitation at the next level. As a result, the caseworker

remained concerned regarding Mother's ability to meet the children's needs at the time of

the permanent custody hearing.

{¶30} The caseworker observed Mother during visitation with the children and

testified Mother failed to demonstrate an ability to care for the children. Specifically, the

caseworker explained that Mother lacks an ability to focus and care for all the children's

needs at one time. The visitation center expressed similar concerns regarding Mother's

ability to meet the children's needs, and Mother herself acknowledged at the hearing that

she did not have the resources to provide for the children's needs if they were placed in her

- 12 -
 Butler CA2022-05-053

custody that day. As such, and despite her participation in parenting classes, the record

does not reflect Mother remedied the Agency's concerns regarding her ability to adequately

care for or parent the children.

{¶31} Although Mother expressed a desire to reunify with the children, her failure to

make progress on the case plan, to remedy the conditions that led to the children's removal,

and overall inability to demonstrate the ability to care for the children, evidences her lack of

commitment to the children. As this court has previously recognized, "'[a] child's best

interests are served by the child being placed in a permanent situation that fosters growth,

stability, and security.'" In re I.C., 12th Dist. Clinton Nos. CA2022-04-010 thru CA2022-04-

012, 2022-Ohio-3101, ¶ 45, quoting In re D.E., 12th Dist. Warren Nos. CA2018-03-035,

CA2018-04-038, 2018-Ohio-3341, ¶ 60. According to Mother's own testimony, she cannot

provide such an environment for the children until she "fixes her situation," which includes

obtaining housing, employment, and transportation. While this court acknowledges that

Mother believes she can eventually provide adequate care for her children, "a parent is

afforded a reasonable, not an indefinite, period to remedy the conditions causing the

children's removal." In re K.P., 12th Dist. Preble No. CA2021-11-016, 2022-Ohio-1347, ¶

43.

{¶32} Despite the Agency's involvement for more than two years, Mother has simply

been unable to remedy the conditions that caused the children's removal or demonstrate

an ability to provide the stability and security the children need. Mother was given many

opportunities to regain custody of her children, but she failed to take advantage of them.

The children are in need of a legally secure placement, and it is evident Mother cannot

provide such an environment for the children within a reasonable time. The children have

spent a majority of their lives, and in E.M.'s case, all of his life, in the Agency's custody, and

the record reflects the children have gained the safety and stability they need since being

- 13 -
 Butler CA2022-05-053

placed in their foster home. The children are thriving together in their foster placement and

are bonded with their foster family. Notably, due to the strong bond the children have with

their foster parents, paternal grandparents and a great uncle withdrew their requests for

placement of the children prior to the permanent custody hearing.

{¶33} When considering the evidence in the record, it is clear that the juvenile court's

decision reflects the concern that these children were in need of safety and stability, which

could not be achieved absent the grant of permanent custody. In light of the foregoing, we

conclude that it is in the best interest of the children for permanent custody to be awarded

to the Agency. As such, we find the juvenile court's decision to grant permanent custody of

G.M., M.M., J.M., and E.M. to the Agency was supported by clear and convincing evidence

and was not against the manifest weight of the evidence.

{¶34} Mother's sole assignment of error is overruled.

{¶35} Judgment affirmed.

M. POWELL, P.J., and BYRNE, J., concur.

- 14 -