[Cite as In re S.F., 2013-Ohio-508.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY


IN RE:                                        :
                                              :     Appellate Case No. 25318
                 S.F.                         :
                                              :     Trial Court Case No. JC 2011-9117
                                              :
                                              :     (Juvenile Appeal from
                                              :     (Common Pleas Court)
                                              :
                                              :
                                           ...........

                                          OPINION

                            Rendered on the 15th day of February, 2013.

                                           ...........

MATHIAS H. HECK, JR., by CARLEY J. INGRAM, Atty. Reg. #0020084, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Appellee

CASSIE L. SCRENGI, Atty. Reg. #0084895, 130 West Second Street, Suite 840, Dayton,
Ohio 45402
       Attorney for Appellant

                                         .............

FAIN, P.J.

         {¶ 1}     Y.D. appeals from an order of the Montgomery County Juvenile Court

overruling her objections to a decision of a magistrate and awarding permanent custody of
Y.D.'s daughter, S.F., to Montgomery County Children Services (Agency).

         {¶ 2}       Y.D. contends that the juvenile court abused its discretion in awarding

permanent custody of her child to the Agency, because the record does not support a finding

that permanent custody is in the best interest of the child. She further contends that the

Agency failed to make reasonable efforts at reunification and that it failed to explore potential

placements with relatives or friends. Finally, Y.D. contends that the juvenile court abused its

discretion by awarding permanent custody, as opposed to extending temporary custody.

         {¶ 3}       We conclude that the record supports the juvenile court’s decision to grant

permanent custody of the child to the Agency. We further conclude that the Agency made

reasonable efforts at reunification and that it also sought information regarding other

placement alternatives. Finally, we conclude that the trial court did not abuse its discretion by

awarding permanent custody, rather than extending temporary custody. Accordingly, the

judgment of the trial court is Affirmed.



                                           I. The Course of Proceedings

         {¶ 4}       S.F. was born July 31, 2010 to Y.D. No paternity has been established. At

the time of S.F.’s birth, Y.D. had an open case with the Agency regarding one of her other

children.1 The Agency sought immediate temporary custody of S.F., and the child was placed

in foster care. The Agency, through caseworker Jeff Johnson, continued to work with Y.D.

on her caseplan.           In June 2011, Y.D. regained legal custody of S.F., with the Agency

exercising protective supervision.


           1
                 According to the record, Y.D. lost custody of seven of her children, one of whom was in the permanent custody of the Agency
 at the time of S.F.’s birth, the other six had been placed with relatives, who obtained legal custody of the children.
[Cite as In re S.F., 2013-Ohio-508.]
        {¶ 5}     In November 2011, the Agency filed a new dependency complaint, when it

learned that Y.D. was in jail awaiting transport to prison to begin serving a three-year

sentence. The child was located at the home of a friend of Y.D. The child was again placed

in foster care. Following a hearing, the child was adjudicated dependent, and the magistrate

rendered a decision awarding permanent custody to the Agency. Y.D. filed objections. The

trial court overruled the objections and entered an order awarding permanent custody. Y.D.

appeals from the order of the trial court awarding permanent custody of S.F. to the Agency.



      II. The Trial Court’s Findings that Permanent Custody Is in the Best Interest

             of the Child, and that the Agency Made Reasonable Efforts Toward

                 Reunification Are Supported by the Evidence in the Record;

         and the Trial Court’s Decision to Award Permanent Custody, as Opposed

                to Extending Temporary Custody, Is Not an Abuse of Discretion

        {¶ 6}     Y.D. asserts the following four assignments of error:

                 THE      AGENCY       FAILED    TO    PROVE      BY      CLEAR   AND

        CONVINCING EVIDENCE THAT IT PROVIDED REASONABLE CASE

        PLANNING AND DILIGENT EFFORTS TO REUNIFY THE CHILDREN

        WITH MOTHER.

                 THE GRANT OF PERMANENT CUSTODY IS NOT IN THE BEST

        INTEREST OF THE CHILD.

                 THE       AGENCY       FAILED        TO    EXPLORE        POTENTIAL

        PLACEMENTS FOR THE CHILD WHICH SHOULD HAVE PRECLUDED

        A FINDING OF PERMANENT CUSTODY.
[Cite as In re S.F., 2013-Ohio-508.]
                 THE TRIAL COURT ERRED WHEN IT GRANTED PERMANENT

        CUSTODY           WHEN         A   NON-PERMANENT               DISPOSITION   WAS

        APPROPRIATE AND SUPPORTED BY TESTIMONY.

        {¶ 7}     Y.D. argues that the trial court erred by granting permanent custody of S.F. to

the Agency, because there is no evidence that the Agency made reasonable efforts at

reunification. She further argues that the Agency failed to explore potential placements of the

child with friends and/or relatives. Y.D. claims that the trial court should have, at most,

extended temporary custody rather than granting permanent custody. Finally, she argues that

the trial court’s decision is not in the best interest of the child.

        {¶ 8}     In Ohio, a trial court is authorized to terminate parental rights and grant

permanent custody to the State upon a finding, by clear and convincing evidence, that

permanent custody is in a child's best interest and that the child cannot be placed with a parent

within a reasonable period of time or should not be placed with either parent. R.C.

2151.414(B)(2). The burden of proof is on the Agency. In re L.C., 2d Dist. Clark No. 2010

CA 90, 2011-Ohio-2066, ¶ 14. The trial court must apply R.C. 2151.414(E), which identifies

factors for determining whether a child cannot or should not be placed with either parent

within a reasonable time. If a court finds, by clear and convincing evidence, that any one of

the R.C. 2151.414(E) factors exist, “the court shall enter a finding that the child cannot be

placed with either parent within a reasonable time or should not be placed with either parent.”

In re H.T. & Z.T., 2d Dist. Greene Nos. 10-CA-29, 10-CA-30, 2011-Ohio-1285, ¶ 22–23; In re

K.B.F., 2d Dist. Montgomery No. 24891, 2012-Ohio-1855, ¶ 51.

        {¶ 9}     The juvenile court found sections (1), (4), (11) and (12) of R.C. 2151.414(E)

factors applicable in this case, and thus, found that the child cannot be placed with Y.D.
                                                                                                                       5


within a reasonable time. We agree.

       {¶ 10}       R.C. 2151.414(E)(1) directs the court to consider whether:

                 * * * notwithstanding reasonable case planning and diligent efforts by

       the agency to assist the parents to remedy the problems that initially caused the

       child to be placed outside the home, the parent has failed continuously and

       repeatedly to substantially remedy the problems that initially caused the child to

       be placed outside the home. * * * [T]he court shall consider parental utilization

       of medical, psychiatric, psychological, and other social and rehabilitative

       services and material resources that were made available to the parents for the

       purpose of changing parental conduct to allow them to resume and maintain

       parental duties.

       {¶ 11} Prior to the birth of S.F., Y.D. was engaged in a caseplan that required her to

obtain stable housing and income, complete parenting classes, substance abuse treatment,

anger management classes, and refrain from criminal activity.2 She substantially fulfilled all

of the objectives. However, in May 2010, she was jailed for marijuana use. The use of

marijuana violated the terms of her probation, which she was under following a 2009

conviction for Felonious Assault. At the time of the dispositional hearing in this case, Y.D.

was again incarcerated due to an October 2011 violation of her conditions of probation. Y.D.

was involved in a domestic violence dispute while she was intoxicated. 3                                       Following a

probation violation hearing, she was sentenced to a prison term of three years.

         2
             The agency had been periodically involved with Y.D. and her children for about sixteen years.
         3
             We note that Y.D. was conveyed from prison and was able to attend the hearing with her counsel.
                                                                                           6


       {¶ 12}    The juvenile court found that Y.D.’s conduct resulted in her failure to

complete the case plan, despite the rehabilitative services offered by the Agency, because she

continued to engage in the behavior that had caused the child to be removed from the home.

The evidence in the record supports this conclusion.

       {¶ 13} R.C. 2151.414(E)(4) requires consideration whether:

                The parent has demonstrated a lack of commitment toward the child by

       failing to regularly support, visit, or communicate with the child when able to

       do so, or by other actions showing an unwillingness to provide an adequate

       permanent home for the child.

       {¶ 14} The juvenile court found that Y.D. “has demonstrated a history of criminal

activity, substance abuse, and domestic violence which led to the initial removal of the child

from the home. [Y.D.’s] current incarceration and her history of substance abuse and criminal

behavior show an unwillingness to provide an adequate permanent home for the child.” The

evidence in record supports this conclusion.

       {¶ 15} R.C. 2151.414(E)(11) requires the juvenile court to decide whether:

                The parent has had parental rights involuntarily terminated with respect

       to a sibling of the child pursuant to this section or section 2151.353 or

       2151.415 of the Revised Code, or under an existing or former law of this state,

       any other state, or the United States that is substantially equivalent to those

       sections, and the parent has failed to provide clear and convincing evidence to

       prove that, notwithstanding the prior termination, the parent can provide a

       legally secure permanent placement and adequate care for the health, welfare,
                                                                                               7


       and safety of the child.

       {¶ 16} In this case, Y.D. had her parental rights terminated with regard to seven of

S.F.’s siblings. The Agency has been involved with Y.D. for nearly half of her life and has

provided numerous services in an attempt to reunify her with her various children, including

S.F. Despite these efforts, Y.D. has lost custody of her other seven children. Thus, we find

the record supports the juvenile court’s determination that this section of R.C. 2151.414(E) is

applicable.

       {¶ 17} The     juvenile    court   also   found   the   following    provision    of   R.C.

2151.414(E)(12) applicable:

               The parent is incarcerated at the time of the filing of the motion for

       permanent custody or the dispositional hearing of the child and will not be

       available to care for the child for at least eighteen months after the filing of the

       motion for permanent custody or the dispositional hearing.

       {¶ 18} The juvenile court noted that Y.D..’s projected release date is August 25, 2014

– more than eighteen months after the dispositional hearing. The court concluded that Y.D.

had failed to prove that she would be released prior to her scheduled release date. We agree.

       {¶ 19} Once the juvenile court determines that there is clear and convincing evidence

that one of the factors enumerated in R.C. 2151.414(E) apply, the court must turn to the issue

of whether a grant of permanent custody to the Agency is in the best interest of the child. To

that end, the court must consider the following factors set forth in R.C. 2151.2151.414(D)(1):

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

       parents, siblings, relatives, foster caregivers and out-of-home providers, and
                                                                                             8


       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 * * *;

                (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) of this section

       apply in relation to the parents and child.

       {¶ 20} The juvenile court found that the child has been in custody of the Agency for

all but “four months of her life.” The court further found that the child is bonded with the

mother, but that she is also bonded with, and thriving in the care of, the foster parents. The

Guardian Ad Litem appointed to represent the child filed a report recommending that the

Agency be awarded permanent custody of the child. Finally, the court found that the child’s

need for legally secure permanent placement would be best achieved by a grant of permanent

custody to the Agency. We conclude that the record supports these findings.

       {¶ 21} We now turn to Y.D.’s argument that the Agency did not make reasonable

efforts at reunification. “Reasonable efforts are described as being a good faith effort which
                                                                                             9


is ‘an honest, purposeful effort, free of malice and the desire to defraud or to seek an

unconscionable advantage.’ The issue is not whether [the Agency] could have done more,

but whether it did enough to satisfy the ‘reasonableness' standard under the statute.” (Citations

omitted.) In re Secrest, 2d Dist. Montgomery No. 19377, 2002-Ohio-7096, ¶ 13.

       {¶ 22} As noted above, the Agency has been extensively involved with Y.D.. for

more than a decade. During that time, the Agency worked to meet with Y.D. and review her

caseplan with her. The Agency also helped her enroll in various programs and classes to help

her deal with her substance abuse issues as well as her domestic violence issues. With the

Agency’s help, Y.D. substantially completed all of the classes in which she was enrolled.

However, she continued to engage in the behavior that she went to classes to prevent. We

conclude that the evidence in the record demonstrates reasonable efforts toward reunification

of parent and child.

       {¶ 23} Y.D.’s next argument is that the Agency did not make reasonable efforts at

finding relatives and/or friends for potential placement of the child. This argument is without

merit. This court has held that the consideration of whether a child can be placed with a

relative is not a statutory requirement. In re F. C., 2d Dist. Montgomery No. 23803,

2010–Ohio–3113, ¶ 24.       “That possibility is a matter that ought to be considered in

connection with the child's interaction and relationship with the child's parents, relatives,

foster caregivers, out-of-home providers, and any other person who may significantly affect

the child.” Id.

       {¶ 24} In any event, the record shows that the caseworker attempted to contact

relatives, and even the friend with whom the Agency discovered the child following Y.D..’s
                                                                                          10


incarceration. None of the individuals whose names were provided by Y.D. were viable

options for placement.

       {¶ 25} Next, Y.D. argues that the juvenile court should have granted an extension of

temporary custody as a less restrictive alternative to permanent custody. However, the record

established that Y.D. is in prison for a three-year term. There is no evidence that she will be

released prior to her scheduled release date, which is set for more than eighteen months after

the date of the dispositional hearing. Furthermore, the evidence establishes that Y.D. has

failed to resolve her substance abuse and domestic violence issues, despite the Agency’s

efforts in that regard. And the child is in need of legally secure placement. Keeping a child

who has been in temporary custody for most of her life in that situation for two years longer

does not meet the need for legally secure placement.        The trial court did not abuse its

discretion by awarding permanent custody rather than extending temporary custody.

       {¶ 26} Finally, Y.D. contends that the record does not support a finding that the

award of permanent custody is in the best interest of the child. As noted above, the juvenile

court found otherwise, and this finding is supported by evidence in the record.

       {¶ 27} We conclude that the juvenile court’s decision is supported by the evidence in

the record, and does not constitute an abuse of discretion. Accordingly, Y.D.’s assignments

of error are overruled.



                                       III. Conclusion

       {¶ 28} All of Y.D.’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.
                                                  11


                                  .............

FROELICH and HALL, JJ., concur.

Copies mailed to:

Mathias H. Heck
Carley J. Ingram
Cassie L. Screngi
Hon. Nick Kuntz


Case Information

Case Name: In re S.F.

Citations: 2013 Ohio 508

Court: ohioctapp

Year: 2013-02-15

This case can be cited as precedent.