[Cite as In re J.N.L.H., 2022-Ohio-3865.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
J.N.L.H. : CASE NO. CA2022-06-063
: OPINION
10/31/2022
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
JUVENILE DIVISION
Case No. JN2020-0103
Mark W. Raines, for appellant.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant
Prosecuting Attorney, for appellee, Butler County Children Services
Jeannine C. Barbeau, for appellee, J.H.
Marcelina Woods, guardian ad litem.
PIPER, J.
{¶1} Appellant ("Mother") appeals the decision of the Butler County Court of
Common Pleas, Juvenile Division, granting permanent custody of her child, J.H., to Butler
County Department of Jobs and Family Services, Children Services Division ("the Agency").
For the reasons outlined below, we affirm the decision of the juvenile court.
Facts and Procedural History
{¶2} J.H. was born on December 4, 2007. Mother has not had custody of the child
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since some point in 2008. In November 2019, J.H.'s father ("Father") obtained legal custody
of the child due to Mother's inability to provide and care for the child's basic needs. 1 In
March 2020, the Agency received a neglect and physical abuse allegation regarding J.H.
and four of her half-siblings. Father and J.H.'s stepmother ("stepmother") were identified
as the perpetrators of the neglect and physical abuse. Shortly thereafter, the Agency
learned of domestic violence, substance abuse, and other concerning behavior by Father
and stepmother in front of the children. At that point, the Agency filed a complaint alleging
J.H. was a dependent child and requested temporary custody of the child. After a hearing,
the juvenile court granted temporary custody of J.H. to the Agency. The child was initially
placed in the care of nonrelatives, but was later placed with her paternal grandmother in
June 2020.
{¶3} Thereafter, in July 2020, a hearing was held before a magistrate regarding
the complaint's allegations. During the hearing, Mother indicated she was in agreement
with the juvenile court finding that J.H. was a dependent child based upon the allegations
in the complaint. As a result, J.H. was adjudicated dependent and continued her placement
with her paternal grandmother.
{¶4} A case plan was created for Mother with a goal of reunification. The case
plan states the Agency was concerned with Mother's ongoing issues with substance abuse
and her mental health, as well as her inability to properly care for J.H. in the past. Mother
also appeared easily triggered by stress, and was, at times, unable to cope appropriately
without assistance. In order to address the Agency's concerns, the case plan required
Mother to comply with the services identified in her existing case plan with the Agency
1. Father is the biological father of J.H. and four of her half-siblings. Father was involved in the case and
case plan services initially, but later executed a surrender of his parental rights in favor of the Agency. As a
result, Father did not appeal from the juvenile court's decision and was not involved in these proceedings.
Because Father is uninvolved in the instant appeal, we will analyze the juvenile court's decision and findings
only as they pertain to Mother.
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concerning her son, and to comply with any other Agency recommendations. Notably, the
case plan indicates Mother jointly developed and agreed with the plan; she was provided a
copy of the case plan on June 11, 2020. On July 8, 2020, the case plan was adopted by
the juvenile court as an order of the court, and Mother's counsel confirmed receipt of a copy.
{¶5} In late August 2020, paternal grandmother struggled to maintain appropriate
housing, and J.H. was placed with another paternal relative for two days. On August 28,
2020, J.H. was placed with her paternal great aunt and uncle in Florida. Mother and the
child’s guardian ad litem ("GAL") objected to J.H.’s placement in Florida. J.H.'s great aunt
and uncle were awarded temporary custody of the child from September 17, 2020 until
December 13, 2020. At that time, they relinquished custody of the child due to behavioral
concerns and as a result, J.H. was returned to the temporary custody of the Agency and
placed in a foster home.
{¶6} Throughout the case, Mother displayed minimal efforts in working on her case
plan services. She struggled to maintain sobriety and did not complete drug screens when
requested. Mother did not participate in either substance abuse or mental health treatment
and failed to maintain suitable housing. Although Mother was described as "compliant" with
her case management services early on, she did not engage in case plan services or
provide the Agency with any updates as to her alleged progress. In fact, there were
extended periods of time throughout the case where the Agency had no contact with Mother
and was unsure of her whereabouts.
{¶7} At a review hearing in September 2020, Mother's counsel requested the
juvenile court to order visitation between Mother and the child. At that point, the child's
attorney informed the magistrate that J.H. specifically stated she "only wants contact with
[her parents] if they * * * test clean." J.H.'s GAL further advised the juvenile court that if
J.H.'s parents were not participating in case plan services, J.H. was uninterested in contact
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or visitation with them. After considering the parties' arguments, the magistrate issued an
order giving J.H. the discretion to initiate video calls to Mother or Father. Mother and Father
failed to maintain sobriety throughout the case, which resulted in minimal video calls
between the child and Father, and no calls with Mother and the child.
{¶8} During a review hearing held on July 8, 2021, J.H.'s GAL requested the
magistrate to find that Mother had abandoned the child. The GAL explained that, due to
Mother’s inability to complete any case plan services, Mother had not had contact with the
child since the fall of 2020. As a result, the magistrate issued an order finding that because
Mother had no contact with J.H. between January 1, 2021 and July 8, 2021, Mother had
abandoned the child pursuant to R.C. 2151.011(C).
{¶9} In October 2021, Mother requested the juvenile court to reinitiate visitation
between Mother and the child. At that time, the magistrate found that, because Mother had
not been engaged in any case plan services, and no visitation had occurred between Mother
and the child in more than one year, it was not in the best interest of J.H. to reinitiate
visitation at that time. However, the magistrate explained that Mother could meet with the
caseworker to discuss needed services and, in the future, Mother's visitation with the child
could be modified if it was in the child's best interest to do so. Mother was then ordered to
complete a drug screen the following day, which she failed to do.
{¶10} On October 6, 2021, the Agency moved for permanent custody of J.H. A
hearing on the motion was held before a magistrate in March 2022. Mother, the child's
foster mother, and the caseworker handling the child's case testified at the hearing. Father
did not participate in the hearing, as he previously executed a surrender of his parental
rights in favor of the Agency. The child's 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.
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{¶11} On March 7, 2022, the magistrate issued a decision granting permanent
custody of the child to the Agency. In analyzing the best interest factors, the magistrate
found that although Mother loves her child, J.H. is not currently bonded to her mother and
has consistently reported that she does not want to have any contact with Mother. Despite
requesting visitation with the child throughout the case, Mother's lack of sobriety and failure
to complete drug screens hindered her from exercising visitation for much of the case. This
was due to J.H.'s strong desire to only have contact when her parents were testing negative
for illicit substances. The magistrate further found that Mother had not had contact with
J.H. since she was in relatives' care in Florida and that Mother was found to have
abandoned the child in July 2021.
{¶12} The magistrate further discussed Mother's relationship with J.H. and found
that Mother is primarily focused on the perceived "inequity" when J.H. agreed to speak with
Father prior to surrendering his parental rights, but would not speak with Mother. The
magistrate noted that Mother fails to consider that Father was the custodial parent
throughout the child's life, and that J.H. has never really had a relationship with her mother.
As such, the magistrate declined to find that forcing contact between Mother and J.H. was
in the child's best interest.
{¶13} The magistrate also noted that J.H. had been in the temporary custody of the
Agency for 13 months at the time the Agency moved for permanent custody and that J.H.'s
current foster placement was her fifth placement in the case. The four prior placements
were with both relatives and nonrelatives; however, none of the prior placements provided
the child with the stability she has found in her foster placement. J.H. has blossomed in her
foster placement, is doing well in school, is involved in activities, and is happy and outgoing.
J.H.'s foster mother testified that J.H. is bonded with foster mother and her fiancé, and that
she is interested in adopting J.H.
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{¶14} The magistrate further found that J.H. needs a legally secure placement,
which could not be achieved without a grant of permanent custody to the Agency. The
magistrate detailed Mother's lack of participation in the case, as well as in her case plan
services, and noted that Mother's own actions have contributed to her lack of progress in
obtaining custody of J.H. Mother failed to attend numerous hearings, failed to maintain her
sobriety, and failed to update the Agency with progress related to her treatment. Mother
also failed to maintain stable housing or address the Agency's concerns regarding her
mental health. Thus, based upon Mother's behavior throughout the case, the magistrate
concluded Mother had failed to rectify the concerns that led to the child's removal and that
granting permanent custody to the Agency was in the child's best interest.
{¶15} Mother objected to the magistrate's decision, arguing that the permanent
custody decision was not supported by sufficient evidence and was against the manifest
weight of the evidence. Mother also argued the magistrate abused its discretion in allowing
the child to decide whether she would visit with Mother throughout the case. After a hearing,
the juvenile court overruled Mother's objections and adopted the magistrate's decision in its
entirety.
The Appeal
{¶16} Mother now appeals, raising the following assignments of error for our review:
{¶17} Assignment of Error No. 1:
{¶18} THE TRIAL COURT'S DECISION TO GRANT BUTLER COUNTY
CHILDREN'S SERVICES PERMANENT CUSTODY IS NOT SUPPORTED BY CLEAR
AND CONVINCING EVIDENCE.
{¶19} Assignment of Error No. 2:
{¶20} THE TRIAL COURT ERRED WHEN IT FOUND MOTHER ABANDONED
THE CHILD.
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{¶21} Mother asserts the juvenile court erred by granting permanent custody to the
Agency because its decision was unsupported by clear and convincing evidence and is
against the manifest weight of the evidence. Mother contends the juvenile court erred in
finding by clear and convincing evidence that Mother abandoned the child. Mother further
contends some of the best interest factors weighed in favor of denying the Agency's motion.
Specifically, Mother testified she has a secure placement the child could return to; the initial
cause of removal related to Father; Mother completed multiple case plan objectives; and
the juvenile court did not pursue whether the issues between Mother and the child could be
mended.
{¶22} Before a parent's constitutionally protected liberty interest in the care and
custody of his or her children may be terminated, the state must 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, 769, 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 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.
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{¶23} 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.
{¶24} Pursuant to R.C. 2151.414(B)(1), a 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; In re A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, ¶ 18. 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 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
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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.
{¶25} As it relates to the second prong of the two-part permanent custody test, the
juvenile court found the child 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 motion for
permanent custody. The juvenile court also found that Mother had abandoned the child, as
she had no contact with J.H. between January 2021 and July 2021. Mother does not
dispute that J.H. has been in the temporary custody of the Agency for more than 12 months
of a consecutive 22-month period. Notably, this finding is supported by the record, as J.H.
was deemed in the temporary custody of the Agency on July 1, 2020. The Agency’s
temporary custody was later terminated for 87 days while J.H. was placed with her relatives
in Florida on September 17, 2020. J.H. was returned to the temporary custody of the
Agency on December 13, 2020. Thus, when excluding the time J.H. was in the temporary
custody of her relatives, J.H. had been in the temporary custody of the Agency for more
than 12 months at the time the Agency moved the juvenile court for permanent custody of
the child.
{¶26} On appeal, Mother generally claims the juvenile court erred in finding she had
abandoned her child. As noted above, only one of the R.C. 2151.414(B)(1) findings must
be met to satisfy the second prong of the two-part permanent custody test. In re C.S., 2020-
Ohio-4414, at ¶ 16. Because the juvenile court found by clear and convincing evidence that
the "12 of 22" provision had been satisfied under R.C. 2151.414(B)(1)(d), its abandonment
finding under R.C. 2151.414(B)(1)(a) was unnecessary to grant permanent custody. Id.
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Thus, to the extent Mother claims the juvenile court's abandonment finding pursuant to R.C.
2151.414(B)(1)(a) was in error, we conclude Mother’s argument is moot. In other words,
because Mother failed to challenge the juvenile court's "12-of-22" finding on appeal and did
not challenge whether the trial court's finding was supported by the record, we may affirm
the juvenile court's decision regarding the second prong of the permanent custody test
without conducting any further analysis. In re C.P., 12th Dist. Brown No. CA2022-05-004,
2022-Ohio-3320, ¶ 27, citing In re D.S., 12th Dist. Clinton Nos. CA2021-10-030 and
CA2021-10-031, 2022-Ohio-998, ¶ 66; In re R.D., 12th Dist. Clermont Nos. 2021-05-017
and CA2021-05-018, 2021-Ohio-3780, ¶ 24.
{¶27} In light of the above, the only issue remaining is whether permanent custody
to the Agency was in the child’s best interest. When considering the best interest of a child
in a permanent custody case, such as the case here, the juvenile court is required under
R.C. 2151.414(D)(1) to consider certain enumerated factors. In re D.E., 12th Dist. Warren
Nos. CA2018-03-035 and CA2018-04-038, 2018-Ohio-3341, ¶ 32. Pursuant to R.C.
2151.414(D)(1)(a) thru (e), these factors 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) thru (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. No one factor is given greater weight
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than the others. In re S.H., 12th Dist. Butler Nos. CA2020-02-023 and CA2020-02-024,
2020-Ohio-3499, ¶ 30, citing In re G.W., 12th Dist. Butler No. CA2019-01-003, 2019-Ohio-
1586, ¶ 49. "Nor is any one factor dispositive." In re M.G., 12th Dist. Warren No. CA2020-
10-070, 2021-Ohio-1000, ¶ 29, citing In re Bailey, 11th Dist. Geauga No. 2001-G-2337,
2001 Ohio App. LEXIS 3294, *17 (July 20, 2001).
{¶28} Regarding factors one and two, Mother argues the juvenile court erred in its
analysis, as there has been little done in the case to determine whether Mother’s
relationship with her child was worth preserving. Specifically, Mother claims the juvenile
court should have attempted to repair the relationship between Mother and the child and
should have explored whether Mother could be a "good option." In support, Mother points
to the juvenile court's removal of the child to Florida over Mother’s objection, which
"eliminated an opportunity for Mother to have a meaningful relationship with her daughter,"
as well as the fact that Mother's requests for visitation were repeatedly denied.
{¶29} After a review of the record, we find no merit to Mother's claims. The record
reflects J.H. repeatedly informed her GAL and attorney that she did not wish to have contact
or visitation with Mother unless she (1) demonstrated sobriety and (2) engaged in case plan
services. The child's concerns were communicated to Mother several times throughout the
case; however, Mother did not remain sober and did not engage in case plan services.
Although Mother testified she never missed a drug screen or tested positive for drugs
throughout the case, the record reflects Mother missed drug screens in October 2021 and
August 2020, admitted to heroin use in December 2020, and tested positive for
amphetamines, methamphetamines, and THC in June 2020.
{¶30} The caseworker indicated that, as of March 2, 2022, Mother had not engaged
in the necessary and beneficial case plan services. Mother, on the other hand, offered
conflicting testimony regarding her progress on the case plan. At one point, Mother testified
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she was not aware of the case plan services the Agency requested she complete, as she
"originally wasn't going to be involved because [she] was in consent" with an aunt obtaining
custody of J.H. Notably, the record reflects the aunt's home study was denied in May 2021,
several months prior to the Agency's request for permanent custody of J.H. Later, Mother
indicated there was nothing for her to do on a case plan, as she had obtained a job and
completed "all [her] services in-patient, out-patient." Mother indicated she did not provide
the Agency with the updated information because she "seem[ed] to collide a lot" with the
former caseworker.
{¶31} Mother similarly provided conflicting testimony regarding her housing status.
At one point, Mother testified she had rented a bedroom from a friend for two years. During
that time Mother also placed a tent in her friend's backyard in order to appear homeless.
Mother later testified she moved to a new home one month prior to the hearing, but provided
no details or documentation of her new housing.
{¶32} After noting some of the inconsistencies in the testimony provided by Mother
at the hearing, the juvenile court deemed Mother's testimony not credible. It is well
established that issues of credibility are for the juvenile court, rather than this court, to
determine. In re G.N., 170 Ohio App. 3d 76, 2007-Ohio-126, ¶ 24 (12th Dist.). The juvenile
court had the opportunity to view the witnesses and observed their demeanor, gestures and
voice inflections, and used these observations in weighing the credibility of the testimony.
In re B.J., 12th Dist. Butler No. CA2011-10-192, 2012-Ohio-3127, ¶ 20; In re C.B. et al.,
12th Dist. Butler Nos. CA2008-01-002 and CA2008-01-003, 2008-Ohio-5543, ¶ 18.
Accordingly, we find no error in the weight the juvenile court gave to Mother’s alleged and
uncorroborated case plan progress.
{¶33} Given Mother’s clear refusal to make progress on her case plan and lack of
consistent sobriety, we likewise find no error in the weight given to the child’s wishes and
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the child's best interest. Although Mother believes the juvenile court should have done
more to foster the relationship between Mother and J.H., the record reflects Mother herself
was unwilling to make any behavioral changes to better her relationship with her daughter.
Her unwillingness to and disinterest in working on the case plan demonstrates her lack of
commitment to obtaining custody of J.H. The foster mother testified that J.H. is in therapy
and, due to experiencing a mental breakdown in January 2022, the child began seeing a
trauma therapist. The caseworker similarly explained that J.H. has been hurt "a lot" by
Mother’s actions over the years. Accordingly, when considering the significant hurt and
trauma J.H. has already suffered, it is evident that forced visitation between Mother and the
child was not in the child's best interest.
{¶34} We also are unpersuaded that others are responsible for Mother's lack of
contact and visitation with the child throughout the case. Instead, the record reflects
Mother's own shortcomings and actions were the primary barriers preventing visitation with
J.H. As noted above, the magistrate encouraged Mother to contact the Agency and to
discuss the beneficial case plan services that needed to be completed in order to have
visitation with the child. To streamline that process, the juvenile court instructed Mother to
complete a drug screen and to follow up with the Agency. Mother elected to do neither. As
such, it is clear Mother had the opportunity to partake in services that could lead to the
ability to visit with the child, but Mother refused to take advantage of the opportunities
extended. Accordingly, we conclude factors one and two clearly weigh in favor of granting
permanent custody to the Agency.
{¶35} Regarding the custodial history of the child and the child's need for a legally
secure permanent placement, we find these factors also weigh in favor of awarding
permanent custody to the Agency. Although Mother expressed a desire to obtain custody
of J.H., she also indicated she did not participate in case plan services because she
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believed an aunt was receiving custody of J.H. Mother's failure to participate in the case or
to remedy any of the Agency's concerns regarding her ability to care and provide for J.H.
evidence her lack of commitment to obtaining custody of the child. 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 and CA2018-04-038, 2018-Ohio-3341, ¶ 60. Mother
has not demonstrated any ability to provide J.H. with such an environment. On the other
hand, and according to Mother's own testimony, J.H. is thriving in her foster home, which is
"the first time that [J.H.] been able to live as a normal child, not being responsible for
younger brothers or sisters, * * * not carrying so much chaos on her shoulders at such a
young age or * * * growing up faster than what she needs to."
{¶36} During the Agency's long history of involvement with Mother and J.H., Mother
was given many opportunities to demonstrate an ability and commitment to care and
provide for J.H. Mother has failed to take advantage of those opportunities. The child
needs a legally secure placement and stable environment with consistent nurturing. Mother
has demonstrated she cannot provide such an environment within a reasonable time. At
the time of the permanent custody hearing, the child had been out of the home for nearly
two years and was in her fifth placement. J.H. has finally gained the safety and stability she
needs since being placed in her current foster home. As such, the third and fourth factors
weigh in favor of granting permanent custody to the Agency.
{¶37} Lastly, we reject Mother's challenge to the juvenile court's finding under R.C.
2151.414(B)(1)(b) that she abandoned the child. A child is "presumed abandoned when
the parents of the child have failed to visit or maintain contact with the child for more than
ninety days, regardless of whether the parents resume contact with the child after that
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period of ninety days." R.C. 2151.011(C). In finding the child abandoned, the juvenile court
stated that Mother "has had no contact with the child from January 1, 2021 until March 3,
2022, a period of more than ninety days."
{¶38} Mother does not dispute that more than 90 consecutive days had passed
since she had seen the child and admits that her last contact was while J.H. was placed
with relatives in Florida between September and December 2020. Mother nonetheless
argues that a parent cannot be found to have abandoned her child when a court order
prevents visitation with that child. However, Mother's argument is incorrect.
{¶39} Mother has never presented a reasonable explanation for her lack of contact
with her child. Although Mother was initially not provided court-ordered visitation, she had
the opportunity to have visitation if she complied with case plan services and worked with
the Agency. Mother chose not to do so. Mother failed to make any progress on her case
plan from the time J.H. returned from her placement in Florida until the permanent custody
hearing in March 2022. There were no meaningful efforts to work with the Agency to
facilitate visitation with the child. Therefore, Mother's lack of visitation lies with her and no
one else.
{¶40} When considering whether a child is abandoned, as that term is used in R.C.
Chapter 2151, other courts have considered whether the parent demonstrated an intent to
relinquish their parental rights of custody permanently. See In re B.J., 12th Dist. Warren
Nos. CA2016-05-036 and CA2016-05-038, 2016-Ohio-7440, ¶ 34, citing In re C.E., 2d Dist.
Champaign No. 2005-CA-11, 2005-Ohio-5913, ¶ 2. As noted above, Mother testified she
was initially uninvolved with case plan services and the court proceedings, thereby
voluntarily hindering her ability to receive court-ordered visitation with the child, because
she agreed with an aunt receiving custody of J.H. Such testimony is indicative of Mother's
intention to relinquish her custodial rights of J.H. permanently. Subsequently, Mother's
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demonstrated conduct reveals a withdrawal from a parent-child relationship. The significant
lack of follow through is indicative of more than just noncompliance.
{¶41} Moreover, despite Mother's inability to visit with J.H., R.C. 2151.011(C) does
not limit a finding of abandonment to lack of visitation. Rather, the statute addressing
abandonment also includes a failure to maintain contact with the child. Mother was not
prohibited from otherwise maintaining contact with the child via gifts, mail correspondence,
or other forms of contact outside of court-ordered visitation. Thus, despite her ability to do
so, the record reflects Mother chose not to maintain any contact with her child throughout
most of the case. Under these circumstances, we find no error in the juvenile court's
determination that the child was abandoned as contemplated by R.C. 2151.011(C) and
2151.414(B)(1)(b). In re B.J. at ¶ 31-36.
{¶42} Considering the foregoing, we conclude that it is in the best interest of the
child for permanent custody to be awarded to the Agency. As such, we find the juvenile
court’s decision to grant permanent custody of J.H. to the Agency was supported by clear
and convincing evidence and was not against the manifest weight of the evidence.
{¶43} Accordingly, Mother's assignments of error are overruled.
{¶44} Judgment affirmed.
M. POWELL, P.J., and S. POWELL, J., concur.
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In re J.N.L.H.
Combined Opinion