In re G.A.

[Cite as In re G.A. , 2020-Ohio-1120.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE G.A. :

: No. 108932

A Minor Child :

:

[Appeal by Ta.E., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 23, 2020

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case Nos. AD 15912941, AD 15912942, AD 15912943, and AD 15912944

Appearances:

Milton A. Kramer Law Clinic Center, Andrew S. Pollis, and

Chelsea R. Fletcher and Emily Peterson, Certified Legal

Interns, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Brittany E. Leach, Assistant Prosecuting

Attorney, for appellee.

MARY J. BOYLE, P.J.:

Appellant, Ta.E. (“mother”), appeals the juvenile court’s judgment

granting permanent custody of her daughter, G.A. (d.o.b. Dec. 28, 2007, 11 years old

at the time of the permanent custody hearing) to the Cuyahoga County Department

of Children and Family Services (“CCDCFS” or “the agency”).1 Mother raises one

assignment of error for our review:

The juvenile court erred in granting the agency’s motion for permanent

custody [of G.A.].

Finding no merit to mother’s appeal, we affirm.

I. Procedural History and Factual Background

CCDCFS received emergency custody of G.A. (and her three younger

siblings) on September 17, 2015, after mother was arrested for child endangering

and domestic violence. CCDCFS alleged that G.R. and T.E. had “linear scars on their

bodies.” G.R. also had “scars across his back, chest, stomach, neck, and face.” T.E.

also had “scars on his back and chest.” CCDCFS alleged that mother suffered from

mental health diagnoses, which interfered with her ability to care for her children.

In its complaint, CCDCFS alleged that all of the children were dependent, that T.E.

was abused, and that G.R. was abused and neglected. The court appointed a

guardian ad litem (“GAL”) for the children.

At an adjudication hearing on January 6, 2016, mother stipulated to

an amended complaint, which removed T.E. from the abuse allegations. The

juvenile court found G.R. to be abused and the remaining children to be dependent.

Mother’s case plan included parenting, anger management, and mental health

1 The juvenile court also granted permanent custody of mother’s other three

children to the agency at the same time: G.R., d.o.b. Feb. 21, 2009, T.E., d.o.b. May 1,

2011, and C.E., d.o.b. May 31, 2013. Mother is not challenging the juvenile court’s grant

of permanent custody to the agency with respect to these three children.

services. At that time, the permanency plan for the children was for them to be

reunified with mother.

The juvenile court held a dispositional hearing on February 17, 2016,

where mother agreed that the children should be placed in the temporary custody of

the agency. The magistrate’s dispositional order was approved and adopted by the

juvenile court on March 5, 2016.

On June 21, 2016, the agency filed a motion to modify temporary

custody of the children to permanent custody. The agency alleged that the children

could not be placed with their parents within a reasonable time or should not be

placed with their parents, and that one of the factors under R.C. 2151.414(E) applied.

CCDCFS averred that mother pleaded guilty to third-degree felony child

endangering and misdemeanor domestic violence in February 2016. She was

sentenced to 30 months in prison on March 25, 2016. CCDCFS informed the court

that mother was not scheduled to be released until September 2018. The agency

further alleged that it would be in the children’s best interests for it to be granted

permanent custody.

Before mother went to prison, she completed parenting and anger

management programs and was compliant with her mental health services.

Although mother completed her parenting and anger management classes, she was

not able to demonstrate what she had learned with the children because of a no-

contact order with the children that was in place in her criminal case. Mother was

released from prison six months early, in March 2018.

CCDCFS’s permanent custody motion was set for trial on March 15,

2018 (it had already been continued several times). Mother appeared in court and

requested a continuance on CCDCFS’s permanent custody motion because she had

just gotten out of prison and moved to a half-way house. Mother’s attorney said that

mother would be able to obtain housing through Eden, start visiting the children,

and could “work her case plan.” CCDCFS objected, stating that the motion had been

pending since June 2016. The GAL indicated that it would be in the children’s best

interest to continue the matter, although she acknowledged the children were in

need of permanency. The social worker explained that if the case was continued, the

case plan would have to be amended to add housing and income. Mother would also

have to demonstrate parenting skills, specifically that she could deal with all of the

children’s behaviors and mental health issues. Mother would also have to continue

addressing her own mental health issues. The juvenile court granted mother’s

motion for continuance.

A. GAL Report Before Trial

The GAL explained that G.A. had been placed with her siblings in a

foster home in Youngstown, but that the foster mother asked that she be removed

because she was acting aggressively and was “displaying sexually inappropriate

behavior towards” her siblings. After that, G.A. was placed in a different foster home

in Youngstown.

According to the GAL, G.A. had behavioral problems at school. She

also wet the bed at night. She was admitted to Belmont Pines for evaluation August

2 – 7, 2017. She had been diagnosed with PTSD and bipolar disorder. She takes

medication and is very depressed. The foster mother reported that G.A. cries herself

to sleep every night because she wanted to go home to her mother. She was receiving

individual counseling. The GAL said that although G.A. wished to be returned to

her mother, G.A.’s desire was not consistent.

The GAL recommended that it was in G.A.’s best interest that the

court grant permanent custody of G.A. to the agency but that “if it is possible, it may

be in [G.A.’s] best interest if she is reunified with her mother.” The GAL reserved

her right to modify her recommendation.

B. Permanent Custody Hearing

The trial on CCDCFS’s permanent custody motion did not take place

until August 1, 2019, over three years since the agency filed it and nearly four years

after the children had been removed from mother’s care. Present at the hearing were

mother, mother’s attorney, mother’s GAL, CCDCFS’s attorney, attorney for the

father of G.A. and G.R., attorney for G.A. and G.R., GAL for the children, and the

social worker assigned to the case since CCDCFS first obtained emergency custody

of them on September 17, 2015. At the time of the hearing, G.A. was 11 years old,

G.R. was 10 years old, T.E. was seven years old, and C.E. was six years old.

The attorney for CCDCFS told the court that father for G.A. and G.R.

had been in federal prison in New York throughout the case and the father for T.E.

and C.E. had not had contact with the agency in a very long time nor had he worked

on any part of his case plan. She also informed the court that the agency had

investigated relatives for possible placement of the children, but not one was a viable

option. The social worker had investigated mother’s stepmother, but her home was

inappropriate. The social worker also spoke to a couple of mother’s sisters and

paternal grandmother for two of the children, and no one would accept placement

of the children “because of their own family situations and income.”

Mother’s counsel stated that mother disciplined G.R. inappropriately,

but he explained that is how mother was disciplined when she was a child in the

permanent custody of the state. Mother’s counsel stated that mother has now

learned that is not how you discipline children. He indicated that mother had also

done all of the programming that was prescribed to her by CCDCFS as well as many

programs in prison to better herself and had followed all of the rules of her

probation. Mother’s counsel explained that mother does not have an automobile

and was “straining to get housing.” He further stated that mother was also trying to

get social security disability. Mother’s counsel stated that mother had been visiting

her children since she had gotten out of prison, although he admitted that there were

some issues with visitation because the children were placed outside of the county.

Mother’s counsel said that because the visits had to be supervised due to her

criminal case, mother was not able to “have any real closeness with her children,”

but he said that was not her fault. Mother’s counsel further stated that at least one

child wanted to be with mother.

G.A.’s attorney told the court that G.A. wanted to be returned to

mother’s custody. G.A.’s attorney stated that mother had completed all of her case

plan services, and that the only barrier left was that mother had not been officially

terminated from her parole. But G.A.’s attorney explained that was only because the

Parole Authority had not completed the paperwork yet.

The social worker explained that the children were removed from

mother’s custody after mother admitted to hitting G.R. with a telephone cord.

Mother pleaded guilty to child endangering and spent almost two years in prison for

it, from May 2016 to March 2018. When mother got out of prison, her case plan

objectives included participating in mental health services, and family and

individual counseling, and obtaining housing and income. According to the social

worker, mother lost custody of an older child in 2004 or 2005 due to mother’s anger

issues and unstable housing.

Regarding housing, the social worker stated that she had referred

mother to Cuyahoga Metropolitan Housing Authority (“CMHA”). The social worker

explained that she had been to mother’s home in February 2019, and said it was

appropriate at that time. The social worker stated, howver, that she attempted to

see mother’s home in July, just before trial, but mother would not let the social

worker see her home because mother said she was moving. Mother told the social

worker that she was “in the process of moving because she had to be out of her last

place, and she was looking for housing.” Mother further told the social worker that

she could “come see her after she gets in her place.” The social worker stated that

she had not been able to verify if mother found new housing as of the time of trial.

The social worker did hear a conversation that mother had with the children where

she told them she found housing, was waiting for it to be approved, and “should be

able to move in this weekend.” The social worker had not been able to verify if that

was true before trial. Although the social worker testified that Eden had agreed to

pay mother’s rent for as long as she was in their program.

Regarding income, the social worker reported that mother needed to

be able to provide for the children’s basic needs, including food, shelter, and

clothing. When the children came into custody, their housing conditions were poor.

The children were “unkempt.” When the agency received custody of the children,

they had bed bugs and lice. Mother was receiving SSI at that time, but was no longer

receiving it. Mother was purportedly in the process of trying to get her SSI back.

Mother told the social worker that she receives food stamps.

The social worker testified that she had referred mother to a

neighborhood collaborative, Fatima Family Center, and Eden, which helps people

find a place to live and provides rental assistance. Mother also had a therapist and

case manager at The Centers for Families and Children (“The Centers”). The social

worker explained that the neighborhood collaborative and Fatima assisted mother

with obtaining food donations. Mother’s case manager at the collaborative assisted

mother with job opportunities, community resources, and anything the family

needed.

Regarding mental health, mother had a history of mental health

issues. She had been diagnosed with bipolar disorder and schizoaffective disorder.

When the case opened in 2015, mother had not been compliant with her

medications. The social worker stated that mother was already connected to The

Centers when the case opened and was adamant about staying with them. The social

worker testified that she recommended that mother obtain mental health services

from another source because mother had been working with a therapist at The

Centers before she physically abused G.R. According to the social worker, the

therapist informed her that mother’s engagement had been “off and on” around that

time and before mother physically abused G.R. The social worker explained that

mother physically abused G.R. over time, not just in a single incident. G.R. had

marks on him all over his chest, legs, and arms and some were new and some were

old. Mother, however, refused to seek a different mental health provider.

Mother was still receiving services through The Centers. The social

worker verified that mother was currently compliant with her medications.

Mother’s longtime therapist was no longer able to work with mother as of June 2019,

however, so mother had been assigned a new therapist. Mother met with the new

therapist in June 2019, but did not see her in July due to scheduling conflicts.

Regarding family and individual counseling, the social worker

explained that mother struggled with G.R.’s mental health issues and behaviors

when the case started. Plus, mother had been away from the children for almost two

years while she was in prison, so CCDCFS added family counseling to mother’s case

plan. The social worker had explained that the children had “developed new

behaviors” that mother needed to learn how to handle.

According to the social worker, G.A. had been diagnosed with bipolar

disorder and PTSD. G.A.’s foster parents had expressed that G.A. has “sexualized

behaviors.” G.A. had acted out sexually on her “siblings a couple of times to the

point where a safety plan had to be put in place.” G.A. also acted out sexually “on

another foster child in a different foster home.” G.A. also had “aggressive behaviors

when it [came] to being compliant or following directives from an adult.” Further,

G.A. had a tendency to “shut down” and not talk about an issue that was occurring.

G.R. had been diagnosed with ADHD, mild autism, and had an

intellectual disability. G.R. had been smearing feces in the bathroom at his foster

home, urinating on himself, and eating out of the trash.

T.E. had been diagnosed with ADHD, oppositional defiant disorder,

and PTSD. T.E.’s behavior had always been a “struggle” even before mother went to

prison. T.E.’s behavior was still “very hard to control.” T.E. would jump on the

furniture and kick it. He also exhibited aggressive behaviors. But the social worker

explained that T.E. had “calmed down a little bit” more recently.

C.E. had been diagnosed with anxiety adjustment disorder, but was

not on any medication.

The social worker explained that all of the children except C.E. had

been hospitalized for mental health reasons at Belmont Pines. G.A. had been

hospitalized twice for suicidal ideation and self-harm. G.R. and T.E. had both been

hospitalized once.

The social worker testified that the children had been receiving

individual counseling in Youngstown where they were placed in foster homes.

Because of that the social worker set up family counseling at the same facility. It

began in June 2018. The social worker scheduled the family counseling sessions for

two times per month but they ended up only occurring once per month. The social

worker explained that that was not mother’s fault. The social worker further

explained that at one pretrial, the family therapist indicated that she did not believe

it was in the children’s best interests to be reunified with mother because mother

“did not demonstrate parental guidance.” After hearing that, mother would no

longer participate in family counseling sessions because she was upset with the

therapist. Mother stopped going to family therapy in October 2018.

The social worker tried to re-engage mother in family therapy in

March 2019. The social worker set up an appointment for April 5, 2019, and

informed mother about the appointment. Mother asked the social worker if she

would call mother to remind her and the social worker said, “[n]o.” The social

worker told mother, “I’m telling you now, so write it down.” Mother became very

upset with the social worker and said that she did not want to work with her any

longer. Mother told the social worker that she did not believe the social worker

wanted her to get her children back. Mother also told the social worker that she was

“just nasty” and not to “call her phone [any]more.”

The social worker also tried to re-engage mother in another family

counseling program called Life Solutions. Life Solutions was even willing to provide

transportation to mother. They attempted to engage mother in the beginning of July

2019, but mother “was a no-show.” The social worker also scheduled a therapist

from Life Solutions to come to mother’s visit with the children on July 17, 2019, to

observe mother with the children “to have a better plan of working with her moving

forward,” but mother cancelled that visit with the children so it never occurred. But

the social worker agreed that mother did eventually go to Life Solutions and talk to

them and had an appointment to meet with them in the future.

Regarding mother’s visits with the children, the social worker

explained that mother had not really been able to visit with the children while she

was incarcerated in prison at the Ohio Reformatory for Women in Marysville, Ohio.

Plus, mother had a no-contact order with the children due to her criminal case and

her parole. Mother did have a handful of visits with the children once she got moved

to “pre-release” because the juvenile court issued an order stating that mother shall

have supervised visits with the children.

When mother got out of prison, she had supervised visitation with the

children. At first, the social worker scheduled the visits for four hours, twice per

month. Two hours were with a parenting coach and two hours were with the social

worker. At trial, the social worker testified that mother did not feel as if she was

getting enough time with the children so they changed the visits to two hours once

per week. At a pretrial in May 2018, however, the social worker told the court that

it was because the four-hour visits had become too overwhelming for mother and

she could not handle the children’s behaviors in the four-hour visits. After the social

worker changed the visits to weekly, mother visited with the children two times per

month and had family counseling sessions the other weeks.

The social worker explained that the children were difficult to handle

at the supervised visits and mother struggled with their behaviors. At one point, in

May 2018, the parenting coach asked the social worker to talk in the hallway. When

they went back in the room, mother insisted on knowing what they talked about in

the hallway. The social worker told mother that she would talk to her about it after

her visit with the children. Mother became very upset and said that the social worker

talked to her like she was a child. Mother further referred to the social worker as a

“b*tch,” and said that if the social worker supervised her visits with her children, she

would not come. At another visit, in May or June 2018, mother grabbed G.R. by his

face to get his attention. The social worker immediately told mother she could not

do that. Mother got angry at the social worker for “talk[ing] to her like she’s a child.”

The social worker stated that T.E.’s behavior was just as out of control as G.R.’s, but

mother would not get as frustrated with T.E. as she did with G.R.

The social worker testified that mother missed three of four weekly

visits in June and July 2019. Mother told the social worker that she thought she had

pink eye in late June 2019. On July 10, 2019, mother said that she missed her visit

because she had to move out of her home and look for a new one. Mother also

missed a visit on July 17, 2019, because she said that she had an allergic reaction to

something.

Mother completed parenting classes and had a parenting coach. The

social worker also gave mother parenting advice on how to approach her visitations

with the children to help mother better handle the children during the visits.

The social worker opined that as of the date of trial, mother could not

effectively or consistently handle the children’s behavior. Although she admitted

that at a recent visit, mother had properly redirected G.R. when his behavior was

inappropriate.

The social worker opined that mother was not able to care for her

children at the time of trial. She stated that she was not able to verify mother’s

housing or income. Mother had not engaged in family counseling since October

2018. The social worker explained that mother had not been able to have any

unsupervised visits with the children due to her parole. But even if mother had been

released from her parole, the social worker stated that she would not recommend

reuniting mother with the children. Before she could recommend that, mother

would first have to have unsupervised visits with the children, and if all went well,

she would move to overnight visits, and if all went well, they could be reunified. But

at that time, the social worker still would not recommend that mother have

unsupervised visits with the children because of her lack of engagement in family

counseling to obtain better tools to deal with the children’s behaviors.

With respect to G.A., the social worker explained that G.A. “has been

back and forth with wanting to go home to her mom.” The social worker said that

she had concerns about mother’s ability to handle G.A. because mother had not

engaged in family counseling to become more aware of what was occurring with G.A.

When mother missed the three most recent visits, she learned that G.A. cried each

time when mother did not show. The social worker testified that G.A. had just stated

the day before trial that she did not know what she wanted. The court interviewed

G.A. on April 11, 2019.

Mother’s parole officer testified on mother’s behalf. She explained

that mother was eligible for early release from postrelease control supervision

effective July 7, 2019, but that there was only one person who handled the

paperwork for early release so it had not yet been completed. But the parole officer

said that mother had completed all aspects of her postrelease control and there was

no reason to think she might not be released from it as soon as the paperwork could

be processed.

Mother’s long-time therapist from The Centers also testified on

mother’s behalf. The therapist stated that she now worked at Life Solutions (since

December 2018 but her last day at The Centers was June 15, 2019). She said that

she became involved with mother and the children in 2007 or 2008 through Family

Preservation as an intensive in-home case, providing therapeutic services to the

family.2 She explained that her work with the family was initially supposed to be for

eight to 12 weeks, but mother became “an ongoing case” when that ended.

2 G.A. and mother’s older child (mother had already lost custody of this child) were

the only children born at that time.

Mother’s therapist testified that before the children were removed

from mother’s care in September 2015, she and mother had “a break” in services

where she was not able to get in contact with mother. Mother had called the

therapist around that time to tell her that she had not been taking her medication

and that she needed to get back on track. The therapist stated that mother had been

consistent with her medication until “the last kid was born.” She believed mother

had post-partum depression after C.E. was born.

The therapist explained that mother had a very unstable childhood

and had received a lot of “maltreatment.” Mother had continued to struggle with

depression. But according to the therapist, mother had been consistent with her

appointments since her release from prison. The therapist counseled mother on

basic social skills, anger management, and the importance of listening to her

children.

The therapist told the court that mother had “expressed great

displeasure with” CCDCFS. Mother did not feel as if she could communicate with

her assigned worker. The therapist had seen mother interact with the children

before and after prison. She believed that mother was “a great parent who’s made

some unwise decisions.” The therapist stated that she did not know what else

mother could “do to better parent her child or even become a better person.”

The therapist stated that her sister is in charge of facilitating

workshops at Marysville prison. The therapist asked her sister to look after mother

while she was at Marysville. Mother had no idea that the therapist’s sister worked

there. But according to the therapist, mother completed several workshops while

she was in prison. The therapist said that overall, “they have nothing but raving

reviews to say about [mother] as most of those workshops were completed on her

own accord. They weren’t mandated.” The therapist believed mother had benefited

from therapy.

The therapist testified that she thought that mother was scheduled to

move “within the next day or so.” The therapist testified, however, that she had not

seen mother since early June 2019.

The therapist also admitted that when she went to observe one of

mother’s visitations with the children, mother got very upset with the social worker

when she would not let the therapist talk to the children alone. The social worker

did not do so because the children were already in individual counseling. Mother

got angry with the social worker because mother wanted her therapist to talk to G.A.

about her behavior and got very “irritable” that she could not.

Since the therapist had been at Life Solutions, she had been asked to

be a family counselor for mother and the children. The therapist declined, however,

and recommended someone else. When asked why, the therapist stated, “Based

upon my inability to effectively communicate with the CCJFS worker.” But the

therapist admitted that despite their disagreement over the therapist meeting

individually with the children and particularly G.A., the social worker was still

willing to have the therapist or another counselor facilitate family counseling (just

not individual counseling with the children). The therapist was aware that mother

had an appointment scheduled for family therapy at Life Solutions with her new

therapist, but said there “was a cancellation as recently as yesterday.” The therapist

explained the cancellation was due to mother’s new therapist (not the one testifying)

having an emergency.

The therapist testified that she witnessed the social worker “dealing”

with mother on two occasions in early June 2019. The therapist opined that the

social worker was “very devaluing, dehumanizing, very dismissive” of mother. The

therapist witnessed the social worker “walk away from [mother] several times. She

turned her back on mother. There was a smacking of the lips and basically, you

know, just a blow off.” The therapist explained that during those occasions, she

would try to redirect mother when she was speaking with the social worker because

the therapist was “aware that [mother] has explosive moments” and “some anger

management concerns.” The therapist said that the social worker was not happy

that this was happening in early June and said to the therapist, “very clearly this

should have occurred back in January or February.”

The GAL for the children testified that she had been on the case since

September 2015. She recommended that permanent custody be granted to CCDCFS

for G.R., T.E., and C.E. They all had significant behavioral problems, but the foster

mother “works very well with these children.” These three children had never

wavered in their desire to remain in this placement. The GAL stated that the foster

mother would not adopt the children due to her age, but she said the children could

remain with her for as long as they needed.

With respect to G.A., however, the GAL explained that she had been

in four different foster homes since September 2015. The GAL testified that if G.A.

had to be placed in a different foster home again due to her behavior, it would not

be good for her. She agreed that G.A. needed permanency, but opined that even

G.A.’s current placement was not as stable as the boys’ placement. But the GAL

testified that G.A. has a bond with her foster mother, who she refers to as “grandma.”

The GAL explained that “sometimes,” G.A. wants to remain with her foster mother

and “then she wants to go with mom.” The GAL testified, however, that “when [G.A.]

wants to go with mom she becomes so depressed that she cries.” The GAL reported

that the foster mother told the GAL that G.A. “cries herself to sleep” at night. Based

upon these reasons, the GAL recommended that mother get legal custody of G.A.

with protective supervision. The GAL noted, however, that she had concerns about

mother’s housing due to the fact that mother was supposed to move and she did not

know where. The GAL further stated that she did not believe mother could handle

all four children and their behaviors, but “maybe just one child she could.”

C. Juvenile Court’s Judgment

The juvenile court found by clear and convincing evidence that under

R.C. 2151.414(B)(1)(a), G.A. could not be placed with either parent within a

reasonable time or should not be placed with either parent (G.A.’s father had been

in federal prison in New York through the pendency of the case) and that it was in

G.A.’s best interest to be placed in the permanent custody of the agency.

With respect to the best interest factors, the juvenile court found that

CCDCFS presented clear and convincing evidence that (1) G.A. had been in the

custody of the agency since September 2015, and in the temporary custody since

March 5, 2016, (2) G.A. had been in approximately four different placements, (3)

G.A. had expressed her wishes to various people and she “goes back and forth with

whether she wants to return home to [m]other,” (4) the court conducted an in-

camera interview with G.A., who expressed her wishes to the court, and (5) factors

under R.C. 2151.414(E)(7) and (10) apply to mother.

With respect to the factors under R.C. 2151.414(E) (which the court

must consider before making the finding under R.C. 2151.414(B)(1)(a), i.e., whether

the children could be placed with a parent within a reasonable time or should not be

placed with a parent), the court found that the following factors apply to mother:

R.C. 2151.414(E)(4), mother has demonstrated lack of commitment

toward G.A.;

R.C. 2151.414(E)(6), mother was convicted of endangering children

under R.C. 2929.22 and domestic violence under R.C. 2929.25 and the

child or a sibling of the child was a victim of the offense;

R.C. 2151.414(E)(10), mother abandoned G.A. for 2½ years while she

was incarcerated; and

R.C. 2151.414(E)(16), other relevant factors: (1) mother lost custody of

an older child in 2004 to 2005 due to noncompliance with her case

plan, (2) mother’s housing is “up in the air,” and (3) mother is currently

on parole, was not allowed to have unsupervised visits with G.A., and

the court was not sure when mother would be released from parole.

II. Permanent Custody Determination

Parents have a basic and fundamental interest in the care, custody,

and management of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct.

2054, 147 L.Ed.2d 49 (2000). The Ohio Supreme Court recognizes this right as well.

In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990); In re C.F., 113 Ohio

St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 28. Parental rights, however, are not

absolute, and a parent’s natural rights are always subject to the ultimate welfare of

the child. In re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-

4682, ¶ 15, citing In re Cunningham, 59 Ohio St.2d 100, 391 N.E.2d 1034 (1979).

The termination of parental rights is governed by R.C. 2151.414. In re

M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 22. R.C. 2151.414 sets

forth a two-part test courts must apply when deciding whether to award permanent

custody to a public services agency. Under the first prong, a court must find by clear

and convincing evidence one of the following five factors:

(a) * * * [T]he child cannot be placed with either of the child’s parents

within a reasonable time or should not be placed with the child’s

parents [in making this determination, the juvenile court must

consider the factors set forth in R.C. 2151.414(E), which are set forth in

the analysis below];

(b) The child is abandoned;

(c) The child is orphaned and no relatives are able to take permanent

custody of the child;

(d) 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

(e) The child or another child in the custody of the parent or parents

from whose custody the child has been removed has been adjudicated

an abused, neglected, or dependent child on three separate occasions

by any court in this state or another state.

R.C. 2151.414(B)(1)(a)-(e).

The second prong requires the court to find, also by clear and

convincing evidence, that granting permanent custody of the child to the agency is

in the best interest of the child. R.C. 2151.414(D)(1) sets forth best-interest factors

that the court must consider when making the best-interest determination under

R.C. 2151.414(D)(1), including:

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

parents, siblings, relatives, foster caregivers and out-of-home

providers, and any other person who may significantly affect the child;

(b) The wishes of the child * * *;

(c) The custodial history of the child, including whether the child has

been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of

a consecutive twenty-two-month period * * *;

(d) The child’s need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) apply in

relation to the parents and child.

An appellate court will not reverse a juvenile court’s decision

awarding permanent custody to an agency if the judgment is supported by clear and

convincing evidence. In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560,

¶ 28. “Clear and convincing evidence is that measure or degree of proof which will

produce in the mind of the trier of facts a firm belief or conviction as to the

allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477, 120

N.E.2d 118 (1954). A reviewing court is required to examine the record to determine

whether the trier of fact had sufficient evidence to satisfy the clear and convincing

standard. In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24.

A. The First Prong

Mother concedes that the agency established the first prong by clear

and convincing evidence because G.A. had been in the agency’s custody for 12 or

more months of a consecutive 22-month period under R.C. 2151.414(B)(1)(d).

Mother is not correct, however, that the juvenile court made the “12 of 22” finding.

In fact, the juvenile court could not have made that finding because the agency filed

the permanent custody motion before the children had been in its custody for 12

months. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶ 25-

26. Instead, the juvenile court here found that R.C. 2151.414(B)(1)(a) applied, that

is, that G.A. could not be placed with mother within a reasonable time or should not

be placed with mother. Mother does not challenge this finding.

B. The Second Prong — Best Interest

In her sole assignment of error, mother contends that the juvenile

court erred when it found the agency met its burden on the second prong of the

permanent-custody determination, that is, that granting permanent custody of G.A.

was in her best interest under R.C. 2151.414(D)(1). We do not need to determine if

the trial court correctly applied the R.C. 2151.414(D)(1) factors, however, because

the trial court also found that it was in G.A.’s best interest to be placed in the

permanent custody of the agency under R.C. 2151.414(D)(2). And a finding under

section (D)(2) of R.C. 2151.414 mandates that the trial court find it is in a child’s best

interest to be placed in the agency’s permanent custody.

1. R.C. 2151.414(D)(2)

R.C. 2151.414(D)(2) states:

If all of the following apply, permanent custody is in the best interest

of the child, and the court shall commit the child to the permanent

custody of a public children services agency or private child placing

agency:

(a) The court determines by clear and convincing evidence that one or

more of the factors in division (E) of this section exist and the child

cannot be placed with one of the child’s parents within a reasonable

time or should not be placed with either parent.

(b) The child has been in an agency’s custody for two years or longer,

and no longer qualifies for temporary custody pursuant to division (D)

of section 2151.415 of the Revised Code.

(c) The child does not meet the requirements for a planned permanent

living arrangement pursuant to division (A)(5) of section 2151.353 of

the Revised Code.

(d) Prior to the dispositional hearing, no relative or other interested

person has filed, or has been identified in, a motion for legal custody of

the child.

(Emphasis added.)

R.C. 2151.414(D)(2) was added to the statute as part of 2007

Am.Sub.H.B. No. 7, which became effective in April 2009. R.C. 2151.414(D)(1) and

2151.414(D)(2) are alternative means for reaching the best-interest determination.

In re M.K., 10th Dist. Franklin No. 09AP-1141, 2010-Ohio-2194, ¶ 22. Under R.C.

2151.414(D)(2), if the juvenile court makes the four enumerated findings,

permanent custody is per se in the child’s best interest and the court “shall” commit

the child to the permanent custody of the agency. In re J.R., 10th Dist. Franklin No.

17AP-698, 2018-Ohio-1474, ¶ 41; see also In re R.M., 8th Dist. Cuyahoga Nos.

99809, 99810, and 99811, 2013-Ohio-4928, ¶ 15 (“R.C. 2151.414(D)(2) also requires

that a court grant permanent custody to the state if four factors are met[.]”); In re

M.P., 10th Dist. Franklin No. 10AP-478, 2010-Ohio-5877, ¶ 35 (“R.C. 2151.414(D)(2)

sets forth the circumstances under which a juvenile court is required to grant

permanent custody, while the court employing the factors in R.C. 2151.414(D)(1)

considers them to determine whether the best interests of the children are served in

granting the permanent custody motion.”); In re K.T.1, 2018-Ohio-4312, 121 N.E.3d

847, ¶ 74 (1st Dist.) (“If all of the requirements of R.C. 2151.414(D)(2) are satisfied,

then the juvenile court must grant the permanent-custody motion.”).

To ascertain whether R.C. 2151.414(D)(2)(a) applies, we must look to

R.C. 2151.414(E) because determining “that a child cannot be placed with the

parents within a reasonable time or should not be placed with them, the court must

find, by clear and convincing evidence, that at least one of the factors in R.C.

2151.414(E)(1)-(16) is present.” (Emphasis sic.) In re S.C., 8th Dist. Cuyahoga No.

108036, 2019-Ohio-3664, citing In re S.W., 11th Dist. Ashtabula No. 2017-A-0089,

2018-Ohio-1672. Here, the juvenile court made three findings with respect to

mother under R.C. 2151.414(E) (four including “other relevant factors” under R.C.

2151.414(E)(16)). We must therefore determine if at least one of these findings is

supported by clear and convincing evidence.

Factor (6) under R.C. 2151.414(E) states in relevant part that “[t]he

parent has been convicted of or pleaded guilty to an offense under division (A) or

(C) of section 2919.22 or under section * * * 2919.25 * * * of the Revised Code, and

the child or a sibling of the child was a victim of the offense[.]” Mother argues that

because she was convicted of child endangering under R.C. 2919.22(B)(3), her

conviction does not fall under this provision. While mother is correct about her

child-endangering conviction, her domestic violence conviction under R.C. 2919.25

does fall within R.C. 2151.414(E)(6). Therefore, the court was required to enter a

finding that G.A. could not be placed with mother within a reasonable time or should

not be placed with mother. Thus, we find R.C. 2151.414(D)(2)(a) applies.

Further, R.C. 2151.414(D)(2)(b), (c), and (d) also apply. G.A. had

been in the agency’s custody well beyond two years and no longer qualified for

temporary custody. G.A. did not meet the requirements for a planned permanent

living arrangement (to do so, a child must be at least 16 years years old). And there

were no relatives who could take legal custody of her. Therefore, no matter the

juvenile court’s best-interest findings under R.C. 2151.414(D)(1), section (D)(2)

mandates that permanent custody was in G.A.’s best interest and that the court

“shall commit the child to the permanent custody of a public children services

agency or private child placing agency[.]”

2. R.C. 2151.414(D)(1)

Nonetheless, we will briefly address mother’s arguments with respect

to the juvenile court’s R.C. 2151.414(D)(1) best-interest findings. The juvenile court

found that CCDCFS presented clear and convincing evidence that (1) G.A. had been

in the custody of the agency since September 2015 and in the temporary custody

since March 5, 2016, (2) G.A. had been in approximately four different placements,

(3) G.A. had expressed her wishes to various people and she “goes back and forth

with whether she wants to return home” to mother, (4) the court conducted an in-

camera interview with G.A., who expressed her wishes to the court, and (5) R.C.

2151.414(E)(7) and (10) apply to mother.

After review, we find that there is clear and convincing evidence in the

record to support the juvenile court’s first four findings under R.C. 2151.414(D)(1).

We do, however, agree with mother that R.C. 2151.414(E)(7) and (E)(10) do not

apply.

R.C. 2151.414(E)(7) lists a number of convictions that a court can

consider when determining whether permanent custody is in a child’s best interest

if a parent is convicted of one of them. Child endangering under R.C. 2919.22(B)(2)

is included, but not R.C. 2919.22(B)(3), which was mother’s conviction. Domestic

violence is also not listed under R.C. 2151.414(E)(7). Thus, R.C. 2151.414(E)(7) is

not applicable in this case under R.C. 2151.414(D)(1).

With respect to R.C. 2151.414(E)(10), it provides that “[t]he parent

has abandoned the child.” The court found that mother abandoned G.A. for 2½

years when mother was in prison (mother was actually incarcerated for a little less

than two years). Under R.C. 2151.011(C), abandonment is presumed after 90 days

of no contact. It states, “For the purposes of this chapter, a child shall be 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 period of ninety days.” In this case, the evidence

established that mother had to abide by a no-contact order that was in place due to

her criminal convictions. Thus, abandonment does not apply in this case. But see

In re J.B., 5th Dist. Stark Nos. 2017CA00180 and 2017CA00181, 2018-Ohio-397,

¶ 38-39 (“We find [m]other’s voluntary actions created the circumstances which led

to the issuance of the Order. * * * Accordingly, under these circumstances, we find

no error in the trial court’s finding the children were abandoned as contemplated by

R.C. 2151.011(C)”).

Nonetheless, we find that the record clearly and convincingly

supports the juvenile court’s remaining best-interest factors under R.C.

2151.414(D)(1). It is important to remember that when considering the best-interest

factors under R.C. 2151.414(D)(1), “[t]here is not one element that is given greater

weight than the others pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498,

2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. This court has stated that only one of these

enumerated factors needs to be resolved in favor of the award of permanent custody.

In re Moore, 8th Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31,

2000), citing In re Shaeffer, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993).

After a review of the record, we conclude that there is clear and

convincing evidence in the record to support the juvenile court’s finding that it was

in G.A.’s best interest to be placed in the permanent custody of the agency under

R.C. 2151.414(D)(1).

Although G.A. vacillated between wanting to remain in her foster

home and returning to her mother’s care, she was only 11 years old. She was in need

of permanency. G.A. had been in four different foster homes, but the social worker

testified that she believed G.A. could remain in her current foster home for as long

as she needed. The evidence further established that mother had not been involved

in family counseling for over 10 months. Mother was attempting to get re-involved,

but the fact remains that she decided to quit going to family counseling just because

the counselor told the juvenile court something she did not like. G.A. was struggling

with many issues. Mother needed to attend family counseling to learn how to handle

the issues that G.A. was experiencing.

The evidence further established that mother was moving out of her

apartment at the time of the hearing. She had a voucher that would help her with

rent, but without a home for the agency to determine was appropriate, there was no

housing. Mother also did not have a verified source of income to provide for G.A.’s

basic needs.

C. Manifest Weight

Mother also argues that even if this court finds that the there was clear

and convincing evidence to support the “juvenile court’s best-interest finding,” we

should still reverse the parental rights termination as against the manifest weight of

the evidence.

In a permanent custody case, “the ultimate question for a reviewing

court is whether the juvenile court’s findings are supported by clear and convincing

evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43.

This is because a juvenile court’s decision to grant permanent custody will not be

reversed as being against the manifest weight of the evidence “if the record contains

some competent, credible evidence from which the court could have found that the

essential statutory elements for permanent custody had been established by clear

and convincing evidence.” In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-

5849, ¶ 16.

There is one problem with mother’s argument. Under R.C.

2151.414(D)(2), the juvenile court did not have an option in this case. If all four of

the factors under R.C. 2151.414(D)(2) are present, the juvenile court must find that

it is in a child’s best interest to be placed in the permanent custody of the agency. As

we set forth earlier in the opinion, the four factors under R.C. 2151.414(D)(2) were

present by clear and convincing evidence: (1) G.A. could not be placed with mother

within a reasonable time or should not be placed with mother, (2) G.A. had been in

the agency’s custody for almost four years, (3) G.A. does not meet the requirements

of a planned permanent living arrangement, and (4) there were no relatives or other

person who could take legal custody of G.A.

Accordingly, we overrule mother’s sole assignment of error.

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and

LARRY A. JONES, SR., J., CONCUR