[Cite as In re Ca.S.,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

IN THE MATTER OF: : : Ca.S., : Case No. 21CA9 : Case No. 21CA10 Adjudicated Dependent Child, : : AND : DECISION AND JUDGMENT : ENTRY C.S., : : Adjudicated Abused Child. :

APPEARANCES:

Autumn D. Adams, Toledo, Ohio, for Appellant.

Krystin N. Martin, Assistant Pickaway County Prosecuting Attorney, Circleville, Ohio, for Appellee.

Smith, P.J.

{¶1} In these consolidated appeals, the children’s biological mother,

C.M. (“Appellant”), appeals the trial court’s judgments that (1) granted

Pickaway County Job and Family Services (“the agency”) permanent

custody of C.S. and (2) granted legal custody of Ca.S. to the paternal

grandparents. In each appeal, Appellant raises two assignments of error. In

both appeals, Appellant first asserts that the trial court abused its discretion

by denying her motion to continue the hearing to consider the motions for Pickaway App. No. 21CA9 and 21CA10 2

permanent custody and for legal custody. We disagree with Appellant.

Instead, the trial court could have reasonably determined that further delays

would not be in the children’s best interests and that a continuance was not

necessary to secure fair treatment for Appellant.

{¶2} Next, Appellant contends that the trial court’s decision to grant

the agency permanent custody of C.S. is against the manifest weight of the

evidence. Appellant argues that clear and convincing evidence does not

support the trial court’s finding that granting the agency permanent custody

of C.S. is in his best interest. Appellant additionally asserts that the trial

court abused its discretion by granting the paternal grandparents legal

custody of Ca.S. Appellant contends that she complied with the case plan

requirements and that returning the children to her custody is in their best

interests.

{¶3} We do not agree with Appellant. Instead, our review of the

record indicates that the trial court carefully considered all of the evidence

presented at the final hearing and determined that the children’s best interest

would be served by placing C.S. in the agency’s permanent custody and by

placing Ca.S. in the grandparents’ legal custody. We do not believe that the

trial court’s judgment granting the agency permanent custody of C.S. is

against the manifest weight of the evidence. We further do not believe that Pickaway App. No. 21CA9 and 21CA10 3

the trial court abused its discretion by granting the paternal grandparents

legal custody of Ca.S. Consequently, we overrule Appellants’ assignments

of error and affirm the trial court’s judgment.

FACTS

{¶4} In November 2018, Appellant gave birth to C.S. C.S. tested

positive for several illegal substances and spent a few weeks in the hospital

to receive treatment for withdrawal symptoms.

{¶5} Before C.S.’s release from the hospital, the agency received a

referral regarding the child. The agency learned that not only had the child

tested positive for illegal substances at birth but also that Appellant admitted

that she used drugs during her pregnancy. The agency later filed motions

requesting the court to enter ex parte emergency custody orders placing C.S.

and his two-and-one-half-year-old sibling, Ca.S., in their father’s temporary

custody with an order for Appellant to vacate the premises. The court

granted the agency’s motions.

{¶6} The agency also filed complaints alleging that C.S. is an abused

child and that Ca.S. is a dependent child. The agency asked the court to

place the children in their father’s temporary custody and to grant the agency

a protective supervision order. Pickaway App. No. 21CA9 and 21CA10 4

{¶7} On December 18, 2018, the court held a pre-trial hearing.

During the hearing, the agency asked both Appellant and the children’s

father to take a drug screen. Appellant tested positive for buprenorphine and

the father tested positive for a heroin metabolite. The father left the hearing

and did not return. The agency thus asked the court to place C.S. in its

temporary custody and to place Ca.S. in the paternal grandparents’

temporary custody. The court granted the agency’s request.

{¶8} In February 2019, the court held an adjudication hearing.

Appellant admitted the allegations contained in the abuse and dependency

complaints and agreed to proceed to disposition. The court adjudicated C.S.

an abused child and Ca.S. a dependent child. The court placed C.S. in

Appellee’s temporary custody and placed Ca.S. in the paternal grandparents’

temporary custody.

{¶9} The agency developed a case plan for the family to follow with

the goal of reunification. The case plan required Appellant to (1) undergo an

alcohol and drug assessment and comply with any recommendations, (2)

remain compliant with her medication-assisted treatment program, (3)

provide the agency with a list of any current prescriptions and allow random

pill counts, (4) complete a mental health assessment and comply with any

recommendation, (5) submit to random drug screens and test negative for Pickaway App. No. 21CA9 and 21CA10 5

illegal substances, (6) obtain and provide proof of employment, (7) obtain

and maintain safe and stable housing, (8) exercise consistent visitation with

the children, and (9) avoid any additional criminal charges.

{¶10} Appellant completed her alcohol, drug, and mental health

assessments. Appellant also attended recommended treatment and enrolled

in Family Treatment Court. Additionally, Appellant found safe and stable

housing, remained employed, and completed random drug screens. Given

Appellant’s compliance, the court gradually expanded Appellant’s visitation

rights to the point where the court permitted Appellant to have unsupervised

and overnight visits with the children.

{¶11} Appellant continued, however, to have relapses and to test

positive for illegal substances. Integrated Services recommended inpatient

treatment for Appellant, and Appellant was scheduled for detox in August

2019. Appellant refused the treatment.

{¶12} In December 2019, Appellant decided to enter an inpatient

treatment program. Appellant successfully completed the treatment program

and continued to comply with the Family Treatment Court program upon

finishing the inpatient treatment program. Pickaway App. No. 21CA9 and 21CA10 6

{¶13} During the next several months, Appellant continued to attend

treatment and engage in Family Treatment Court. Appellant remained sober

and engaged in all required groups and meetings.

{¶14} In June 2020, however, Appellant opted out of Family

Treatment Court. At an August 2020 case review, the court noted that

Appellant was incarcerated. Additionally, the agency reported that

Appellant had been struggling with sobriety. Integrated Services

recommended a long-term inpatient treatment program for Appellant.

Appellant did not want to engage with medication-assisted treatment and

was not taking suboxone. Appellant indicated that she did not believe that

she needed to receive suboxone.

{¶15} On August 31, 2020, the agency filed motions that requested

the court to place Ca.S. in the paternal grandparents’ legal custody and to

place C.S. in the agency’s permanent custody.1 The court scheduled the

motions for a final hearing to be held on November 16, 2020.

{¶16} On November 10, 2020, Appellant’s counsel filed a motion to

withdraw. The court granted the motion and appointed new counsel. The

court then rescheduled the final hearing to January 8, 2021.

1 On October 20, 2020, the agency also filed a motion that requested the court to place Ca.S. in its permanent custody. The agency later chose to proceed solely on its motion requesting the court to place Ca.S. in the grandparents’ legal custody. Pickaway App. No. 21CA9 and 21CA10 7

{¶17} The court later rescheduled the January 8, 2021 hearing date to

March 16, 2021, due to rise in COVID-19 cases. In the interim, Appellant’s

second counsel filed a motion to withdraw due to a change in employment.

The court granted the motion, and on January 11, 2021, the court appointed

new counsel to represent Appellant.

{¶18} Appellant’s new counsel filed a motion to continue the March

16, 2021 hearing date to give him additional time to review the case file and

to give Appellant additional time to fulfill the case plan goals given the

COVID-19 disruptions.

(¶19} The trial court denied the request to continue the hearing. The

court explained:

The file reflects that counsel was appointed on January 11, 2021. This matter was scheduled for hearing on March 16, 2021. Based upon the age of the case and the need for finality, counsel’s request was denied. As set forth below, this matter was scheduled twice for hearing. The first hearing date was continued due to mother’s counsel having a conflict of interest based upon mother’s request to call a certain witness. The second hearing date was continued by the court based upon the spike in COVID-19 cases. As set forth below, mother’s request to continue the hearing because she was unable to successfully complete her case plan and reunify with [the children] is not well-taken.

{¶20} On March 16, 2021, and continuing on April 2, 2021, the trial

court held a hearing to consider the agency’s motions. At the hearing, an Pickaway App. No. 21CA9 and 21CA10 8

agency supervisor testified that when Appellant gave birth to Ca.S. in 2016,

the child had tested positive for illegal substances. At the time, the family

lived in Ross County, and the Ross County children’s services agency

investigated the matter. The child was temporarily placed with the paternal

grandparents. Appellant successfully completed the case plan, and the

agency returned the child to Appellant’s custody.

{¶21} Amy Hoar testified she has been the family’s caseworker since

August 2019. Hoar explained that Appellant complied with elements of the

case plan. Appellant completed an alcohol and drug assessment and

obtained treatment from several providers throughout the history of the case.

Hoar indicated that all of the treatment providers have recommended either

inpatient treatment or intensive outpatient treatment. Hoar stated that

Appellant usually refused to participate in inpatient treatment. Appellant

did, however, complete a 30-day treatment program through Pickaway Area

Recovery Services.

{¶22} Hoar related that even though Appellant completed various

treatment programs, the agency continued to have concerns. Hoar stated that

Appellant submitted to drug screens and that while some were negative,

others were positive. Moreover, Appellant was not testing positive for her

prescribed medication. Pickaway App. No. 21CA9 and 21CA10 9

{¶23} Appellant testified and explained that even though she has

struggled with drug addiction since she was 13 years of age, she has shown

that she can remain sober. She claimed that she was sober from 2009

through 2016. Appellant further agreed, however, that she had been

incarcerated from 2010 to 2014.

{¶24} The trial court subsequently placed Ca.S. in the paternal

grandparents’ legal custody and placed C.S. in the agency’s permanent

custody. The court determined that the agency presented clear and

convincing evidence that C.S. has been in its temporary custody for twelve

or more months of a consecutive 22-month period and that placing C.S. in

the agency’s permanent custody is in his best interest. The court further

concluded that placing Ca.S. in the grandparents’ legal custody is in her best

interest.

{¶25} In evaluating C.S.’s best interest, the court considered C.S.’s

interactions and interrelationships. The court found that Appellant’s

physical interactions with C.S. were appropriate and noted that during visits,

C.S. interacted with Ca.S. The court indicated that the child is bonded to the

foster family and that the foster family has stated that they would adopt the

child. The court concluded that C.S. is too young to directly express his Pickaway App. No. 21CA9 and 21CA10 10

wishes but noted that his guardian ad litem and legal counsel recommended

that the court place the child in the agency’s permanent custody.

{¶26} The court next considered C.S.’s need for a legally secure

permanent placement and whether he can achieve that type of placement

without granting the agency permanent custody. The court observed that the

father did not appear for the final hearing, did not complete any part of the

case plan, and failed to remain sober. Moreover, the father’s current living

situation is unknown.

{¶27} The court noted that although Appellant complied with certain

components of the case plan, Appellant was unable to maintain continuous

sobriety throughout the history of the case. The court found that during the

pendency of the case, Appellant relapsed three times: (1) in August 2019; (2)

in December 2019; and (3) in August 2020.

{¶28} The court observed that Appellant stated that she has been

using drugs for the past 23 years and that she has entered at least 12

treatment programs throughout that time. The court also recognized

Appellant’s testimony that Appellant understands the triggers that lead her to

use drugs and has established coping mechanisms. However, the court

concluded that despite Appellant’s treatment, she continued to experience

relapses during the history of the case. The court determined that Appellant Pickaway App. No. 21CA9 and 21CA10 11

“struggles with mental health issues and long-term chemical dependency

issues.” The court did not believe that Appellant had attained stability and

found that “it is unclear whether she will ever obtain stability.”

{¶29} The court made similar findings with regard to Ca.S.’s best

interest and the decision to place her in the grandparents’ legal custody. The

court found that although Appellant loves Ca.S., Appellant “has failed to

demonstrate an ability to provide Ca.S. with permanent placement.”

{¶30} The court thus granted the paternal grandparents legal custody

of Ca.S. and granted the agency permanent custody of C.S. These appeals

followed.

CASE NUMBER 21CA9

ASSIGNMENTS OF ERROR

I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT MOTHER’S REQUEST FOR A CONTINUANCE OF THE HEARING ON PCJFS’ MOTION FOR PERMANENT CUSTODY.

II. THE TRIAL ABUSED ITS DISCRETION WHEN IT FAILED TO REUNIFY Ca.S. WITH MOTHER AS MOTHER HAD COMPLETED CASE PLAN SERVICES AND THUS IT WAS IN Ca.S.’S BEST INTEREST TO BE RETURNED TO THE CARE OF HER MOTHER.

CASE NUMBER 21CA10 Pickaway App. No. 21CA9 and 21CA10 12

ASSIGNMENTS OF ERROR

III. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT MOTHER’S REQUEST FOR A CONTINUANCE OF THE HEARING ON PCJFS’ MOTION FOR PERMANENT CUSTODY.

IV. THE TRIAL ABUSED ITS DISCRETION WHEN IT FAILED TO REUNIFY C.S. AS PCJFS DID NOT ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT PERMANENT CUSTODY WAS IN C.S.’S BEST INTEREST AS MOTHER HAD COMPLETED CASE PLAN SERVICES.

ANALYSIS

FIRST ASSIGNMENTS OF ERROR

{¶31} In her first assignments of error, Appellant argues that the trial

court abused its discretion by overruling her motion to continue the final

hearing.

{¶32} “The determination whether to grant a continuance is entrusted

to the broad discretion of the trial court.” State v. Conway,

, 2006–Ohio–791,

, ¶ 147, citing State v. Unger,

,

(1981), syllabus. Consequently, “ ‘[a]n appellate

court must not reverse the denial of a continuance unless there has been an

abuse of discretion.’ ” State v. Jones,

,

(2001), quoting Unger,

. “ ‘[A]buse of discretion Pickaway App. No. 21CA9 and 21CA10 13

[means] an ‘unreasonable, arbitrary, or unconscionable use of discretion, or

* * * a view or action that no conscientious judge could honestly have

taken.’ ” State v. Kirkland,

,

,

, quoting State v. Brady,

,

,

. “An abuse of discretion includes a situation in which a

trial court did not engage in a ‘ “sound reasoning process.” ’ ” State v.

Darmond,

,

,

,

quoting State v. Morris,

,

,

, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban

Redevelopment Corp.,

,

(1990). The

abuse-of-discretion standard is deferential and does not permit an appellate

court to simply substitute its judgment for that of the trial court.

.

{¶33} The Supreme Court of Ohio has adopted a balancing approach

that recognizes “all the competing considerations” to determine whether a

trial court’s denial of a motion to continue constitutes an abuse of

discretion. Unger,

. In exercising its discretion, a trial

court should “[w]eigh[] against any potential prejudice to a defendant * * *

concerns such as a court’s right to control its own docket and the public’s

interest in the prompt and efficient dispatch of justice.”

A court should Pickaway App. No. 21CA9 and 21CA10 14

also consider: (1) the length of the delay requested; (2) whether other

continuances have been requested and received; (3) the inconvenience to

litigants, witnesses, opposing counsel and the court; (4) whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful,

or contrived; (5) whether the defendant contributed to the circumstance

which gives rise to the request for a continuance; and (6) other relevant

factors, depending on the unique circumstances of the case. Id.; State v.

Conway,

,

,

, ¶ 147; State

v. Jordan,

,

,

.

{¶34} “ ‘There are no mechanical tests for deciding when a denial of

a continuance is so arbitrary as to violate due process. The answer must be

found in the circumstances present in every case, particularly in the reasons

presented to the trial judge at the time the request is denied.’ ” Unger,

, quoting Ungar v. Sarafite,

,

,

(1964); State v. Broom,

,

(1988) (“Obviously, not every denial of a continuance

constitutes a denial of due process.”). Furthermore, “[o]n review we must

look at the facts of each case and the [appellant] must show how [s]he was

prejudiced by the denial of the continuance before there can be a finding of

prejudicial error.” Broom,

. Additionally, with respect Pickaway App. No. 21CA9 and 21CA10 15

to the continuance of juvenile court hearings, Juv.R. 23 provides that

“[c]ontinuances shall be granted only when imperative to secure fair

treatment for the parties.”

{¶35} In the case at bar, we do not believe the trial court abused its

discretion by overruling Appellant’s motion to continue the final hearing.

As the trial court observed, the cases had been pending for more than two

years when Appellant asked the court to continue the hearing for a third

time. The trial court could have rationally determined that extending the

cases for another continuance would not be in the children’s best interest and

would not be imperative to secure fair treatment for Appellant.

{¶36} Moreover, although Appellant’s new counsel had less than two

months to prepare for the final hearing, counsel nevertheless fully

participated in the final hearing and asked pointed questions of the witnesses

who testified. Nothing in the final hearing transcript indicates that

Appellant’s counsel was not fully prepared for the hearing. Rather, the

transcript shows the opposite. Therefore, Appellant cannot establish that the

court’s refusal to continue the matter resulted in prejudicial error.

{¶37} Accordingly, based upon the foregoing reasons, we overrule

Appellant’s first assignments of error.

SECOND ASSIGNMENTS OF ERROR Pickaway App. No. 21CA9 and 21CA10 16

{¶38} In her second assignments of error, Appellant contends (1) that

the trial court’s decision to grant the agency permanent custody of C.S. is

against the manifest weight of the evidence and (2) that the court abused its

discretion by placing Ca.S. in the grandparents’ legal custody. Appellant

asserts that the agency failed to present clear and convincing evidence that

placing C.S. in the agency’s permanent custody is in his best interest. She

further contends that the preponderance of the evidence does not support the

trial court’s decision to place Ca.S. in the paternal grandparents’ legal

custody. Appellant claims that she completed the case plan requirements

and that her compliance shows that reuniting the children with her is in their

best interests. We first address Appellant’s argument that her case plan

compliance shows that the children should be returned to her custody.

CASE PLAN COMPLIANCE

{¶39} A parent’s case plan compliance may be a relevant, but not

necessarily conclusive, factor when a court evaluates which placement

option will serve a child’s best interest. See In re T.J., 4th Dist. Highland

Nos. 15CA15 and 15CA16,

,

, ¶ 36,

citing In re R.L., 9th Dist. Summit Nos. 27214 and 27233,

(stating that “although case plan compliance may be relevant to a trial

court’s best interest determination, it is not dispositive of it”); In re S.C., 8th Pickaway App. No. 21CA9 and 21CA10 17

Dist. Cuyahoga No. 102349,

, ¶ 40 (“Compliance with a

case plan is not, in and of itself, dispositive of the issue of reunification.”);

accord In re K.M., 4th Dist. Ross No. 19CA3677,

,

, ¶ 70, citing In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-

Ohio-5841, ¶ 46 (stating that “[s]ubstantial compliance with a case plan is

not necessarily dispositive on the issue of reunification and does not

preclude a grant of permanent custody to a children’s services agency”); In

re N.L., 9th Dist. Summit No. 27784,

(stating that

substantial compliance with a case plan, in and of itself, does not establish

that a grant of permanent custody to an agency is erroneous”). “Indeed,

because the trial court’s primary focus in a permanent custody proceeding is

the child’s best interest, ‘it is entirely possible that a parent could complete

all of his/her case plan goals and the trial court still appropriately terminate

his/her parental rights.’ ” In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-

Ohio-5841,

, ¶ 46, quoting In re Gomer, 3d Dist.

Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21,

;

accord In re K.J., 4th Dist. Athens No. 08CA14,

,

¶ 24 (stating that “when considering a R.C. 2151.414(D)(1)(d)

permanent custody motion, the focus is upon the child’s best interests, not

upon the parent’s compliance with the case plan”). Thus, a parent’s alleged Pickaway App. No. 21CA9 and 21CA10 18

case plan compliance does not preclude a trial court from awarding

permanent custody to a children services agency when doing so is in the

child’s best interest.

{¶40} A similar analysis applies in legal custody proceedings:

“* * * A parent’s case-plan compliance is relevant, of course, to the best-interest determination, but it is not dispositive. In re T.S.,

,

, ¶ 13 (2d Dist.). Satisfying case-plan objectives is a means to an end, not an end unto itself. Id. at ¶ 12. The statutory best-interest factors may justify an award of legal custody to someone other than a parent, or even the termination of parental rights, despite a parent’s completion of all case-plan objectives. Id. This is so because the best-interest factors encompass much more than the parent’s case-plan objectives, and they do so from the perspective of the child's particular needs. In short, the focus of a best-interest analysis is on the child, not the parent.”

In re C.W., 2nd Dist. Montgomery No. 28781,

,

, ¶ 19, quoting In re A.K., 2d Dist. Montgomery No. 27575, 2017-

Ohio-8100, ¶ 11.

{¶41} In the case at bar, Appellant completed many of the case plan

services, including the requirement to complete an alcohol and drug

assessment and to receive treatment. At times, however, Appellant refused

to follow the treatment providers’ recommendations to enroll in an inpatient

treatment program. Moreover, although Appellant completed drug treatment

programs, those programs apparently did not help Appellant completely Pickaway App. No. 21CA9 and 21CA10 19

conquer her drug addiction. Instead, Appellant continued to relapse while

the case was pending. Thus, although Appellant did, in fact, complete many

of the case plan services, Appellant did not fulfill the overall goal to show

that she will provide the children with a safe, stable, permanent home where

they will be free from the harm that may result if Appellant were to have

another relapse.

{¶42} Furthermore, even if Appellant completed each case plan

requirement, we reiterate that the focus is upon the child’s best interest and

not upon a parent’s case plan compliance. As we explain below, the

evidence supports the trial court’s best interest determinations with respect

to each child.

PERMANENT CUSTODY

{¶43} We next address Appellant’s argument that clear and

convincing evidence does not support the trial court’s decision to grant the

agency permanent custody of C.S.

STANDARD OF REVIEW

{¶44} A reviewing court generally will not disturb a trial court’s

permanent custody decision unless the decision is against the manifest

weight of the evidence. See In re R.M.,

,

,

¶ 53 (4th Dist.). When an appellate court reviews whether a trial court’s Pickaway App. No. 21CA9 and 21CA10 20

permanent custody decision is against the manifest weight of the evidence,

the 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.’ ” ’ ” Eastley v. Volkman,

, 2012-

Ohio-2179,

, ¶ 20, quoting Tewarson v. Simon,

,

(9th Dist. 2001), quoting State v.

Thompkins,

,

(1997), quoting State v.

Martin,

,

(1st Dist. 1983).

{¶45} In a permanent custody case, the ultimate question for a

reviewing court is “whether the juvenile court’s findings * * * were

supported by clear and convincing evidence.” In re K.H.,

,

,

. In determining whether a trial

court based its decision upon clear and convincing evidence, “a reviewing

court will examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of proof.” State v.

Schiebel,

,

(1990). “Thus, if the children

services agency presented competent and credible evidence upon which the

trier of fact reasonably could have formed a firm belief that permanent Pickaway App. No. 21CA9 and 21CA10 21

custody is warranted, then the court’s decision is not against the manifest

weight of the evidence.” R.M. at ¶ 55.

{¶46} Once the reviewing court finishes its examination, the court

may reverse the judgment only if it appears that the factfinder, when

resolving the conflicts in evidence, “ ‘clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be reversed and a

new trial ordered.’ ”

, quoting

. A reviewing court should find a trial court’s

permanent custody decision against the manifest weight of the evidence only

in the “ ‘exceptional case in which the evidence weighs heavily against the

[decision].’ ”

quoting

.

PERMANENT CUSTODY PRINCIPLES

{¶47} A parent has a “fundamental liberty interest” in the care,

custody, and management of his or her child and an “essential” and “basic

civil right” to raise his or her children. Santosky v. Kramer,

,

,

(1982); In re Murray,

,

(1990); accord In re D.A.,

,

,

, ¶¶ 8-9. A parent’s rights, however, are

not absolute. D.A. at ¶ 11. Rather, “ ‘it is plain that the natural rights of a

parent * * * are always subject to the ultimate welfare of the child, which is Pickaway App. No. 21CA9 and 21CA10 22

the polestar or controlling principle to be observed.’ ” In re Cunningham,

,

(1979), quoting In re R.J.C.,

(Fla. App. 1974). Thus, the State may terminate parental rights

when a child’s best interest demands such termination. D.A. at ¶ 11.

PERMANENT CUSTODY FRAMEWORK

{¶48} R.C. 2151.414(B)(1) specifies that a trial court may grant a

children services agency permanent custody of a child if the court finds, by

clear and convincing evidence, that (1) the child’s best interest would be

served by the award of permanent custody, and (2) any of the following

conditions applies:

(a) The child is not abandoned or orphaned, has not 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 has not 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 if, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state, and the 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. (b) The child is abandoned. (c) The child is orphaned, and there are no relatives of the child who are able to take permanent custody. (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 Pickaway App. No. 21CA9 and 21CA10 23

consecutive 22-month period, or the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two- month period and, as described in division (D)(1) of section 2151.413 of the Revised Code, the child was previously in the temporary custody of an equivalent agency in another state. (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.

{¶49} The statute further states:

For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

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

{¶50} In the case at bar, the trial court found that the child has been in

the agency’s temporary custody for more than 12 months of a consecutive

22-month period, and thus, that R.C. 2151.414(B)(1)(d) applies. The mother

does not challenge the court’s finding. Therefore, we do not address the

issue.

{¶51} R.C. 2151.414(D)(1) requires a trial court to consider all

relevant, as well as specific, factors to determine whether a child’s best

interest will be served by granting a children services agency permanent Pickaway App. No. 21CA9 and 21CA10 24

custody. The specific factors include: (1) the child’s interaction and

interrelationship with the child’s parents, siblings, relatives, foster parents

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

affect the child; (2) the child’s wishes, as expressed directly by the child or

through the child’s guardian ad litem, with due regard for the child’s

maturity; (3) the child’s custodial history; (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 factors listed under R.C. 2151.414(E)(7) to (11) apply.

{¶52} Determining whether granting permanent custody to a children

services agency will promote a child’s best interest involves a delicate

balancing of “all relevant [best interest] factors,” as well as the “five

enumerated statutory factors.” In re C.F.,

, 2007-Ohio-

1104,

, ¶ 57, citing In re Schaefer,

,

,

; accord In re C.G., 9th Dist. Summit

Nos. 24097 and 24099,

,

, ¶ 28; In re

N.W., 10th Dist. Franklin Nos. 07AP-590 and 07AP-591,

,

, ¶ 19. However, none of the best interest factors requires

a court to give it “greater weight or heightened significance.” C.F. at ¶ 57.

Instead, the trial court considers the totality of the circumstances when Pickaway App. No. 21CA9 and 21CA10 25

making its best interest determination. In re K.M.S., 3d Dist. Marion Nos. 9-

15-37, 9-15-38, and 9-15-39,

,

, ¶ 24; In re

A.C., 9th Dist. Summit No. 27328,

,

,

¶ 46. In general, “[a] child’s best interest is served by placing the child in a

permanent situation that fosters growth, stability, and security.” In re

C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19,

,

, ¶ 66, citing In re Adoption of Ridenour,

,

(1991).

{¶53} In the case at bar, we do not believe that the trial court’s best

interest determination is against the manifest weight of the evidence. The

agency presented substantial clear and convincing evidence that placing C.S.

in its permanent custody would serve the child’s best interest.

Child’s Interactions and Interrelationships

{¶54} The agency did not express any concerns regarding Appellant’s

interaction with C.S. during visitation. Moreover, Appellant clearly loves

C.S. However, Appellant did not refrain from drug use during her

pregnancy, and C.S. was born with drugs in his system. C.S. spent several

weeks in the hospital after his birth to receive treatment for withdrawal

symptoms. Pickaway App. No. 21CA9 and 21CA10 26

{¶55} C.S. has an older sister, Ca.S., with whom he interacts during

visits with Appellant. Although the siblings appear to interact appropriately

during visits with Appellant, they never have lived together for any length of

time.

{¶56} C.S. has lived with the same foster family since shortly after his

birth and has remained in the home since that time. C.S. is bonded to the

foster family, and the foster family provides for all of C.S.’s needs. The

foster family intends to adopt C.S. if given the option.

Child’s Wishes

{¶57} As the trial court noted, the child is too young to directly

express his wishes. The child’s guardian ad litem and legal counsel

recommended that the court grant the agency permanent custody of C.S.

Custodial History

{¶58} After C.S.’s release from the hospital, he lived with his father

and Ca.S. for a few weeks. In December 2018, the court placed C.S. in the

agency’s temporary custody, and he has remained in its temporary custody

since that time. The child never has been in Appellant’s custody.

Legally Secure Permanent Placement

{¶59} “Although the Ohio Revised Code does not define the term

‘legally secure permanent placement,’ this court and others have generally Pickaway App. No. 21CA9 and 21CA10 27

interpreted the phrase to mean a safe, stable, consistent environment where a

child’s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19,

, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12,

, *9 (Aug. 9, 2001) (implying that “legally secure

permanent placement” means a “stable, safe, and nurturing

environment”); see also In re K.M., 10th Dist. Franklin Nos. 15AP-64 and

15AP-66,

(observing that legally secure permanent

placement requires more than stable home and income but also requires

environment that will provide for child’s needs); In re J.H., 11th Dist. Lake

No. 2012-L-126,

(stating that mother unable to

provide legally secure permanent placement when she lacked physical and

emotional stability and that father unable to do so when he lacked grasp of

parenting concepts); In re J.W.,

,

,

(10th Dist.) (Sadler, J., dissenting) (stating that a legally

secure permanent placement means “a placement that is stable and

consistent”); Black’s Law Dictionary 1354 (6th Ed. 1990) (defining “secure”

to mean, in part, “not exposed to danger; safe; so strong, stable or firm as to

insure safety”); Id. at 1139 (defining “permanent” to mean, in part,

“[c]ontinuing or enduring in the same state, status, place, or the like without

fundamental or marked change, not subject to fluctuation, or alteration, fixed Pickaway App. No. 21CA9 and 21CA10 28

or intended to be fixed; lasting; abiding; stable; not temporary or transient”).

Thus, “[a] legally secure permanent placement is more than a house with

four walls. Rather, it generally encompasses a stable environment where a

child will live in safety with one or more dependable adults who will provide

for the child’s needs.” M.B. at ¶ 56.

{¶60} In the case at bar, we believe that clear and convincing

evidence supports the court’s finding that the child needs a legally secure

permanent placement and that the child cannot obtain this type of placement

without granting the agency permanent custody. Appellant’s drug addiction

prevents her from maintaining a permanently stable environment for C.S.

The father’s current situation is unknown. No other suitable relatives are

available to care for C.S.

{¶61} We recognize that Appellant has engaged in substance abuse

treatment programs and successfully completed some. Unfortunately,

Appellant has a lengthy history of substance abuse and has experienced

many relapses while trying to conquer her addiction. To be sure, Appellant

has experienced periods of sobriety. However, she experienced three

relapses while the case was pending. Moreover, the longest period of

sobriety apparently occurred when she was imprisoned for several years. Pickaway App. No. 21CA9 and 21CA10 29

{¶62} Additionally, this court has recognized that a parent’s history is

one of the best predictors of future behavior. See In re West, 4th Dist.

Athens No. 05CA4,

,

, ¶ 28, citing In re

A.S., 12th Dist. Butler Nos. CA2004-07-182 and CA2004-08-185, 2004-

Ohio-6323,

, ¶ 37 (“Past history is often the best predictor

of future conduct. While surely people can change, the facts do not indicate

that [the biological parents] have the motivation or ability to follow through

and do what is necessary to regain custody of their child.”); In re Vaughn,

4th Dist. Adams No. 00CA692,

, *7 (Dec. 6, 2000) (“To

further the interests of the children, the court must consider any evidence

available to it, including a parent’s pattern of conduct. Some of the most

reliable evidence for the court to consider is the past history of the children

and the parents.”); see also In re Brown,

,

(1st Dist. 1989) (stating that the mother’s “past parenting

history and her ability to comply with prior reunification plans regarding her

other children were relevant considerations in the juvenile court's

dispositional determination” to award a children services agency permanent

custody). Appellant’s pattern of conduct over the course of her 23-year

history of drug use shows that she experiences periods of sobriety but

eventually relapses. Thus, even if at the time of the final hearing Appellant Pickaway App. No. 21CA9 and 21CA10 30

had been in a period of sobriety, history suggests that Appellant would

continue to struggle with sobriety.

{¶63} Furthermore, we have repeatedly recognized that trial courts

need not experiment with a child’s welfare:

“* * * [A] child should not have to endure the inevitable to its great detriment and harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate the future, however, is at most, a difficult basis for a judicial determination. The child’s present condition and environment is the subject for decision not the expected or anticipated behavior of unsuitability or unfitness of the * * * [parent]. * * * The law does not require the court to experiment with the child’s welfare to see if he will suffer great detriment or harm.”

In re W.C.J., 4th Dist. Jackson No. 14CA3,

,

, ¶ 48, quoting In re Bishop,

,

(5th Dist. 1987).

{¶64} In the case before us, the child has been in the agency’s

temporary custody for more than two years. During that time, Appellant did

not adequately conquer her drug addiction so as to give the agency assurance

that if it returned the child to her custody she would not relapse. The trial

court could have decided that another relapse was inevitable given

Appellant’s history and that returning C.S. to Appellant’s custody to allow

her a chance to prove her suitability presented too great a risk to the young

child’s well-being. Pickaway App. No. 21CA9 and 21CA10 31

{¶65} We understand that drug addiction is powerful and difficult to

overcome, and that Appellant certainly made strides. However, we do not

believe that it is in a child’s best interest to continue the child in custodial

limbo—or to return a child to a parent’s care—when the parent is engaged in

a long-term fight against drug addiction. We do not believe that it is in a

child’s best interest to be placed with a parent who may or may not once

again experience a relapse, especially when the parent has a long history of

drug use and relapses. While we commend Appellant for her efforts to

combat her drug addition, we nevertheless believe that competent, credible,

clear and convincing evidence supports the trial court’s finding that placing

C.S. in the agency’s permanent custody is in his best interest.

LEGAL CUSTODY

{¶66} Next, we review Appellant’s argument that the trial court

abused its discretion by placing Ca.S. in the paternal grandparents’ legal

custody.

STANDARD OF REVIEW

{¶67} “A trial court has broad discretion in proceedings involving the

care and custody of children.” In re Mullen,

, 2011-

Ohio-3361,

, ¶ 14. Consequently, we review a trial court’s

decision to award a party legal custody of an abused, neglected, or Pickaway App. No. 21CA9 and 21CA10 32

dependent child for an abuse of discretion, and we afford its decision “the

utmost deference.” In re E.W., 4th Dist. Washington Nos. 10CA18,

10CA19, and 10CA20,

, citing Miller v. Miller,

,

(1988); accord In re A.J.,

,

,

, citing Davis v. Flickinger,

,

(1997) (stating that “a trial court’s

decision in a custody proceeding is subject to reversal only upon a showing

of abuse of discretion”); In re A.L.P., 4th Dist. Washington No. 14CA37,

, ¶ 15; In re C.J.L., 4th Dist. Scioto No. 13CA3545, 2014-

Ohio-1766, ¶ 12. Ordinarily, “[t]he term ‘abuse of discretion’ implies that

the trial court’s attitude was unreasonable, arbitrary, or unconscionable.” In

re H.V.,

,

,

. In Davis,

however, the court explained the abuse of discretion standard that applies in

child custody proceedings as follows:

The standard for abuse of discretion was laid out in the leading case of C.E. Morris Co. v. Foley Constr. Co. (1978),

,

,

, but applied to custody cases in Bechtol v. Bechtol (1990),

,

, syllabus:

“Where an award of custody is supported by a substantial amount of credible and competent evidence, such an award will not be reversed as being against the weight of the evidence by a reviewing court. (Trickey v. Pickaway App. No. 21CA9 and 21CA10 33

Trickey [1952],

,

,

, approved and followed.)”

The reason for this standard of review is that the trial judge has the best opportunity to view the demeanor, attitude, and credibility of each witness, something that does not translate well on the written page. As we stated in Seasons Coal Co. v. Cleveland (1984),

, 10 OBR 408, 410-412,

, 1276-1277:

“The underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony. * * *

“* * * A reviewing court should not reverse a decision simply because it holds a different opinion concerning the credibility of the witnesses and evidence submitted before the trial court. A finding of an error in law is a legitimate ground for reversal, but a difference of opinion on credibility of witnesses and evidence is not. The determination of credibility of testimony and evidence must not be encroached upon by a reviewing tribunal, especially to the extent where the appellate court relies on unchallenged, excluded evidence in order to justify its reversal.”

This is even more crucial in a child custody case, where there may be much evident in the parties’ demeanor and attitude that does not translate to the record well.

Id. at 418-419.

{¶68} Accordingly, reviewing courts should afford great deference to

trial court child custody decisions. A.L.P. at ¶ 16; E.W. at ¶ 19, citing Pater Pickaway App. No. 21CA9 and 21CA10 34

v. Pater,

,

(1992). Additionally,

because child custody issues involve some of the most difficult and

agonizing decisions that trial courts are required to decide, courts must have

wide latitude to consider all of the evidence, and appellate courts should not

disturb a trial court’s judgment absent an abuse of discretion. See Davis,

; Bragg v. Hatfield,

,

,

(4th Dist.); Hinton v. Hinton, 4th Dist. Washington No.

02CA54,

, ¶ 9; Ferris v. Ferris, 4th Dist. Meigs No. 02CA4,

, ¶ 20. “In proceedings involving the custody and welfare

of children the power of the trial court to exercise discretion is peculiarly

important. The knowledge obtained through contact with and observation of

the parties and through independent investigation can not be conveyed to a

reviewing court by printed record.” Trickey,

, at 13.

{¶69} Thus, this standard of review does not permit us to reverse a

trial court’s decision if we simply disagree with it. We may, however,

reverse a trial court’s custody decision if the court made an error of law, if

its decision is unreasonable, arbitrary, or unconscionable, or if substantial

competent and credible evidence fails to support it. Davis,

(explaining “abuse of discretion standard” and stating

that courts will not reverse custody decisions as against the manifest weight Pickaway App. No. 21CA9 and 21CA10 35

of the evidence if substantial competent and credible evidence supports it,

courts must defer to fact-finder, courts may reverse upon error of law, and

trial court has broad discretion in custody matters).

{¶70} We additionally note that courts generally have applied the

preponderance-of-the-evidence standard to trial court decisions granting a

party legal custody of a child. In re R.A., 2nd Dist. Montgomery No. 28806,

,

, ¶ 41, citing In re R.H.B., L.M.B., and

L.M.B., 2d Dist. Clark Nos. 2015-CA-12, 2015-CA-14,

,

and In re A.W., 2d Dist. Montgomery No. 21309,

. “A

‘preponderance of the evidence’ is ‘evidence which is of greater weight or

more convincing than the evidence which is offered in opposition to it.’ ” In

re B.P.,

,

,

(4th

Dist.), quoting Black’s Law Dictionary 1182 (6th Ed. 1998).

LEGAL CUSTODY FRAMEWORK

{¶71} Once a trial court adjudicates a child abused, neglected, or

dependent, R.C. 2151.353(A)(3) authorizes the court to “[a]ward legal

custody of the child to either parent or to any other person who, prior to the

dispositional hearing, files a motion requesting legal custody of the child or

is identified as a proposed legal custodian in a complaint or motion filed

prior to the dispositional hearing by any party to the proceedings.” Pickaway App. No. 21CA9 and 21CA10 36

{¶72} R.C. 3109.04(F)(1) specifies the best interest factors courts

must consider when determining whether to award legal custody to a party

requesting it. A.L.P. at ¶ 17, citing E.W. at ¶ 20; R.C. 2151.23(F)(1); In re

Poling,

,

(1992), paragraph two of the

syllabus (“[w]hen a juvenile court makes a custody determination

under R.C. 2151.353, it must do so in accordance with R.C.

3109.04”); Pryor, 86 Ohio App.3d at 333, fn.4 (stating that a trial court

applies the same best interest standard in child custody disputes originating

from a divorce and originating from a neglect, dependency, abuse

complaint). Those factors are as follows:

(a) The wishes of the child’s parents regarding the child’s care;

(b) If the court has interviewed the child in chambers pursuant to division (B) of this section regarding the child’s wishes and concerns as to the allocation of parental rights and responsibilities concerning the child, the wishes and concerns of the child, as expressed to the court; (c) The child’s interaction and interrelationship with the child’s parents, siblings, and any other person who may significantly affect the child’s best interest; (d) The child’s adjustment to the child’s home, school, and community; (e) The mental and physical health of all persons involved in the situation; (f) The parent more likely to honor and facilitate court- approved parenting time rights or visitation and companionship rights; Pickaway App. No. 21CA9 and 21CA10 37

(g) Whether either parent has failed to make all child support payments, including all arrearages, that are required of that parent pursuant to a child support order under which that parent is an obligor; (h) Whether either parent or any member of the household of either parent previously has been convicted of or pleaded guilty to [certain specified criminal offenses]; (i) Whether the residential parent or one of the parents subject to a shared parenting decree has continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court; (j) Whether either parent has established a residence, or is planning to establish a residence, outside this state.

{¶73} In the case at bar, we do not believe the trial court abused its

discretion by placing Ca.S. in the paternal grandparents’ legal custody. With

respect to the factors listed above, Appellant obviously wishes for the child

to be returned to her custody. The court did not interview the child, as the

child is too young to express her wishes. The paternal grandparents have

been providing for Ca.S.’s needs and the child appears well-adjusted to their

home. Appellant interacted appropriately with Ca.S. during visits, but

Appellant did not establish that she would remain sober for the foreseeable

future so as to be able to provide Ca.S. with a permanently safe, stable home

and continued appropriate interactions free from drug abuse. Appellant

engaged in mental health counseling and received drug abuse treatment.

However, she continued to relapse throughout the pendency of the case.

None of the other factors are relevant in the case at bar. Pickaway App. No. 21CA9 and 21CA10 38

{¶74} The preponderance of the evidence shows that Appellant has

not established a stable, safe, and permanent home for Ca.S. where the child

will be free from the harm associated with drug abuse. Instead, the evidence

shows that Appellant has been in a struggle to gain long-term control of her

drug addiction since Ca.S.’s birth in 2016. Appellant has had bouts of

sobriety but while the case was pending Appellant relapsed three times:

twice in 2019 and once in August 2020. The trial court could have

reasonably determined that Appellant’s lengthy history of substance abuse,

coupled with her periodic relapses, shows that Ca.S. would not experience a

safe and nurturing upbringing if returned to Appellant’s custody. While we

do not doubt that Appellant deeply loves Ca.S., Appellant sadly has not

sufficiently overcome her drug addiction so as to provide a safe place for

Ca.S.

{¶75} Accordingly, based upon the foregoing reasons, we overrule

Appellant’s second assignments of error.

CONCLUSION

{¶76} Having overruled all of Appellant’s assignments of error, we

affirm the trial court’s judgment.

JUDGMENT AFFIRMED. Pickaway App. No. 21CA9 and 21CA10 39

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and that costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Pickaway County 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.

Abele, J. and Wilkin, J., Concur in Judgment and Opinion.

For the Court,

______________________________ Jason P. Smith Presiding Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.