[Cite as In re J.H., 2016-Ohio-5266.]




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

 IN RE:                                       :
                                              :
             J.H.                             :   C.A. CASE NO. 27082
                                              :
                                              :   T.C. NO. 2012-9175
                                              :
                                              :   (Juvenile appeal from
                                              :    Common Pleas Court)
                                              :
                                              :


                                         ...........

                                        OPINION

                    Rendered on the ___5th___ day of ___August___, 2016.

                                         ...........

KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Montgomery County Children Services

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard,
Springboro, Ohio 45066
      Attorney for Appellant, L.L.

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

FROELICH, J.

        {¶ 1} Mother appeals from a judgment of the Montgomery County Court of

Common Pleas, Juvenile Division, which granted permanent custody of J.H., now age 10,

to Montgomery County Children Services (MCCS).           For the following reasons, the
                                                                                     -2-


judgment of the trial court will be affirmed.

         I.   Procedural History

       {¶ 2} MCCS filed a dependency complaint with respect to J.H. on December 31,

2012, who was then age 7, and it was awarded temporary custody. In April 2013, J.H.

was adjudicated to be dependent. A case plan was developed, and MCCS worked with

Mother on its objectives. Mother’s substance abuse and mental health issues were the

focus of many of the case plan’s objectives. Although Father was also involved with

MCCS to some extent, he made it clear to the caseworkers that he was not interested in

obtaining custody of J.H.

       {¶ 3} The trial court extended temporary custody in July and September 2014.1

On November 20, 2014, MCCS filed a motion for permanent custody, and on March 19,

2015, Mother filed a motion for legal custody of J.H. A hearing was held on March 24,

2015. Father voluntarily surrendered his parental rights at the hearing. The magistrate

filed a decision on May 6, 2015, awarding permanent custody to MCCS. Mother filed

objections. On March 25, 2016, the trial court overruled the objections, adopted the

decision of the magistrate, and awarded permanent custody to MCCS.

        II.   Best Interests of the Child

       {¶ 4} Mother raises one assignment of error, which challenges the trial court’s

conclusion that it was in J.H.’s best interest to award permanent custody to MCCS.

       {¶ 5} R.C. 2151.414 establishes a two-part test for courts to apply when

determining a motion for permanent custody of a child to a public children services



1 R.C. 2151.415(D) permits a children services agency to seek two extensions of a
temporary-custody order.
                                                                                           -3-


agency. The statute requires the court to find, by clear and convincing evidence, that: (1)

granting permanent custody of the child to the agency is in the best interest of the child;

and (2) either the child (a) cannot be placed with either parent within a reasonable period

of time or should not be placed with either parent if any one of the factors in R.C.

2151.414(E) are present; (b) is abandoned; (c) is orphaned and no relatives are able to

take permanent custody of the child; or (d) has been in the temporary custody of one or

more public or private children services agencies for twelve or more months of a

consecutive twenty-two month period. R.C. 2151.414(B)(1); In re N.C., 2d Dist.

Montgomery No. 26611, 2015-Ohio-2969, ¶ 13.

       {¶ 6} R.C. 2151.414(D) directs the trial court to consider all relevant factors when

determining the best interest of the child, including but not limited to: (1) the interaction

and interrelationship of the child with the child’s parents, relatives, foster parents and any

other person who may significantly affect the child; (2) the wishes of the child; (3) 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; (4) the child’s need

for a legally secure permanent placement and whether that type of placement can be

achieved without a grant of permanent custody to the agency; and (5) whether any of the

factors in R.C. 2151.414(E)(7) through (11) are applicable. R.C. 2151.414(D); In re N.C.

at ¶ 14.    R.C. 2151.414(E)(7) through (11) include whether the parent has been

convicted of any of a number of listed offenses; whether the parent has repeatedly

withheld medical treatment or food; whether the parent has placed the child at substantial

risk of harm two or more times due to substance abuse and has rejected treatment two
                                                                                         -4-


or more times or refused to participate in treatment; whether the parent has abandoned

the child; and whether the parent has had parental rights previously terminated.

       {¶ 7} All of the court’s findings must be supported by clear and convincing

evidence. R.C. 2151.414(E); In re J.R., 2d Dist. Montgomery No. 21749, 2007-Ohio-

186, ¶ 9. A trial court’s decision on termination of parental rights “will not be overturned

as against the manifest weight of the evidence if the record contains competent, credible

evidence by which the court could have formed a firm belief or conviction that the essential

statutory elements for a termination of parental rights have been established.” (Citations

omitted.) In re L.J., 2d Dist. Clark No. 2015-CA-85, 2016-Ohio-2658, ¶ 21, citing In re

A.U., 2d Dist. Montgomery No. 22264, 2008-Ohio-186, ¶ 15.

       {¶ 8} Furthermore, “issues relating to the credibility of witnesses and the weight to

be given the evidence are primarily for the trier of fact.” In re A.J.S., 2d Dist. Miami No.

2007 CA 2, 2007-Ohio-433, ¶ 22. The “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.”      Seasons Coal Co., Inc. v.

Cleveland, 10 Ohio St. 3d 77, 80, 461 N.E.2d 1273 (1984); In re J .Y., 2d Dist. Miami No.

07-CA-35, 2008-Ohio-3485, ¶ 3.

       {¶ 9} The parties do not dispute, and the trial court found, that J.H. had been in

the temporary custody of MCCS for twelve or more months of a consecutive twenty-two-

month period preceding MCCS’s motion for permanent custody. Thus, we will focus on

the best interest analysis, and we need not discuss the second part of the test set forth in

R.C. 2151.414.
                                                                                        -5-


       {¶ 10} Mother contends that MCCS did not establish, by clear and convincing

evidence, that it was in J.H.’s best interest to award permanent custody to MCCS. The

evidence presented at the hearing was as follows.

       {¶ 11} Shelly Aggarwal was Mother’s ongoing caseworker with MCCS at the time

of the hearing. She had been working on J.H.’s case since February 2013. J.H. was

nine years old at the time of the hearing.      J.H. has one sibling, a half-sister who

sometimes lived with him and who was removed from Mother’s home at the same time.

J.H.’s sister, who has a different father, was placed with her father’s family and was not

a party to these proceedings.

       {¶ 12} Aggarwal testified that, throughout most of J.H.’s life, he had alternated

living with Mother and his maternal grandmother, with Grandmother being the primary

caregiver.   However, both Mother and Grandmother have substance abuse problems.

The record indicates that MCCS became involved in the case in 2012 after both women

tested positive for drug use, and Grandmother stated that she and Mother were actively

using illegal drugs together. There were also staff reports that a man in Mother’s life had

touched J.H.’s sister inappropriately while he was supervising her at Eastway (a mental

health facility) during one of Mother’s appointments. J.H. was placed in the temporary

custody of MCCS after MCCS unsuccessfully explored the possibility of placement with

other relatives.

       {¶ 13} Mother’s case plan objectives included the following: obtain and maintain

permanent housing, employment, and income; obtain a Crisis Care assessment and

follow any recommendations that resulted from the assessment; obtain and maintain

sobriety; attend visitation with J.H.; provide financial support; and demonstrate behaviors
                                                                                         -6-


learned in therapy.

       {¶ 14} According to Aggarwal, Mother lived in various homeless shelters or with

a boyfriend for most of 2012, but eventually got an apartment through the Homefull

program. She was unemployed for much of 2013 and sometimes received food stamps

and Medicaid while unemployed, but Mother received no “cash assistance.” She also

received money for cigarettes from her mother. A “family support worker” was assigned

to help Mother with applications, driving to submit applications, and work-related

educational programs. Mother claimed to be turning in job applications and not hearing

back from employers, but when the family support worker followed up with the employers,

she learned that the applications had not been turned in.

       {¶ 15} In November 2013, Mother obtained a job at Taco Bell. Although she was

terminated in early 2014, Mother continued to claim that she was working as an excuse

for being late to appointments and visitation. Aggarwal learned of the prior termination

by calling Taco Bell. In June 2014, Mother obtained an “STNA” (the state-tested nursing

assistant certificate) and got a job with Healing Touch, but the job only lasted a couple of

months; Mother was terminated because of her criminal record. Just prior to the hearing,

in March 2015, Mother claimed that she had been hired to work the third shift at a Waffle

House, but she had not actually started working and had not provided Aggarwal with

verification of her income or employment.

       {¶ 16} Mother claimed that she had developed an addiction when a friend gave

her what she thought were vitamins, but were really illegal drugs.            The primary

substances that she struggled with were heroin and pain medicine. Mother was already

receiving mental health services through Eastway, so MCCS referred her to “CAM” for
                                                                                       -7-


substance abuse treatment, including group and individual therapy.      In the spring and

summer of 2013, Mother told several stories to Aggarwal about relapsing in her use of

drugs and getting clean again; she only attended one appointment at CAM during this

time, and she tested positive for opiates at that appointment. When questioned by

Aggarwal about this positive test, Mother denied using illegal drugs and claimed she had

been given pain medication at a hospital.       Aggarwal asked Mother for discharge

paperwork to verify this claim, but Mother did not provide such paperwork. Mother also

never went back to CAM.

      {¶ 17} Mother was subsequently referred to Eastway for a substance abuse

program, but her attendance at the program sessions was “very sporadic”; Mother

claimed that she had forgotten appointments, had transportation problems, or had

conflicting appointments.    Although Mother admitted to Aggarwal that she had one

relapse, she reported to others involved in her treatment that she had relapsed several

times and was using “half to one gram of heroin daily.” Mother was also referred to

Project Cure for a methadone treatment program, but she revoked the medical release

that allowed Aggarwal to obtain information about Mother’s progress.

      {¶ 18} Mother tested positive for opiates monthly from March through October or

November 2014, but she continued to deny any illegal drug use and to attribute her

positive drug test results to pain medications. She did not provide any proof that such

medications had been prescribed for her. Moreover, in the midst of this denial of drug

use, Mother asked her therapist at Project Cure for a referral to Nova House “for coping

skills for substance abuse.” The referral was initially denied because of Mother’s ongoing

positive drug tests, but she eventually entered a 30-day program at Nova House in
                                                                                         -8-


December 2014.      Mother later claimed that her therapist at Project Cure had told her

“not to worry about the groups or the therapy right now” because the organization was

“restructuring.”

       {¶ 19} Aggarwal testified to her belief that Mother was still associating with people

who were using illegal drugs, citing an incident in which a male friend had overdosed at

Mother’s apartment in February 2015. (Drug use at the apartment also put Mother’s

housing in jeopardy.) Mother brought the same man to a visit with J.H., without MCCS’s

approval. Mother introduced the man to J.H. outside the building so they would not be

observed. This introduction created a rift with J.H. and an emotional setback for him;

Mother had told J.H. there would be no other guys in their lives, and J.H. was afraid

Mother would pick the man over J.H. Based on what Mother said to J.H. about the man,

he appeared to be living with Mother. Aggarwal further testified that, around the same

time, a man had answered Mother’s phone when Aggarwal attempted to contact Mother

and seemed very familiar with her routine and whereabouts. Aggarwal testified that

Mother’s willingness to put J.H. in potentially unsafe situations with her boyfriends was

“repeating the same behavior that kind of got the case opened to begin with” and was “a

huge concern” of MCCS.

       {¶ 20} With respect to Mother’s mental health, Aggarwal stated that Mother had

been diagnosed with “bipolar NOS,” post-traumatic stress disorder, depression, anxiety,

opioid dependence, and bulimia nervosa.        Aggarwal testified that Mother was “very

sporadic taking her medication” for mental health issues throughout the case. Mother

was eligible for help in paying for her medications from the Patient Assistance program,

but she did not follow through with applying. She went without her medication for several
                                                                                           -9-


months between 2013 and 2014, and had an “ongoing issue of not taking her medications

regularly,” although the medications were eventually covered through Medicaid.

       {¶ 21} J.H.’s visitation with Mother after his removal was “very, very chaotic,” and

after the visits, he acted out by drawing violent pictures and saying violent things; he

would also have trouble sleeping, wet the bed, did not want to sleep alone, and did not

let anyone touch him. For these reasons, visits were suspended from March through

December 2013. According to Aggarwal, J.H. expressed mixed feelings or was “wishy-

washy” about visits; he enjoyed the visits when Mother would bring him candy, soda, or

toys, but if she did not bring anything, he did not want to see her. When visits resumed

in December 2013, they went well at first and Mother attended consistently but, within a

short time, she began not showing up for visits, which left the children (J.H. and his sister)

“heartbroken.” Mother’s visits became more consistent again after May 2014, but J.H.’s

interest in the visits remained tied to Mother’s promises to buy him things and do things

with him, and she did not consistently follow through on those promises. J.H. had also

observed that, if he lived with Mother, “he wouldn’t have to follow the rules,” because she

lets him do whatever he wants.

       {¶ 22} J.H.’s transition to a new foster home occurred in November and

December 2014, approximately 3 months before the hearing. Although the adjustment

to the new foster home had been difficult for J.H., Aggarwal expressed confidence that

his relationship with the foster family and his comfort level in the home would improve

with time.

       {¶ 23} With respect to Father, Aggarwal testified that Father claimed not to be

able to care for J.H.; Father had not visited with J.H. in two years and did not see any
                                                                                        -10-


point in doing so if he did not want custody.    Father also stated that he did not want

anything to do with Mother, because of the “potential she had to hurt him and to ruin his

life.” Grandmother was also involved in the case plan and had expressed an interest in

custody of J.H., but Aggarwal testified that Grandmother had never followed through with

a home study, which was a prerequisite to obtaining custody, and had substance abuse

issues of her own.

      {¶ 24} In conclusion, Aggarwal testified that reunification of J.H. with either parent

was not possible in “the foreseeable future.”      With respect to Mother in particular,

Aggarwal observed that Mother continues to make poor choices and to place J.H. in

unsafe situations, and that it is not apparent that Mother’s substance abuse has been

resolved.

      {¶ 25} Melodie Morrow, J.H.’s therapist of almost two years at the time of the

hearing, met with him two to four times per month during that period. She testified that

she had worked with J.H. on issues related to adjustment to foster care and Type II Post-

Traumatic Stress Disorder, which she described as a “more chronic” type of PTSD than

Type I, with which more people are familiar. Type II PTSD is rooted in “developmental

trauma” through neglect over an extended period of time that “throws [a kid] off a normal

course of development.”

      {¶ 26} As a consequence of J.H.’s PTSD, he engaged in “sexualized and

aggressive social play,” was not well socialized, had trouble sleeping and had nightmares,

was fearful, had “low startle threshold,” and thought of himself as a “bad boy.” Morrow

viewed these problems as a result of early exposure to a drug-addicted caregiver and

exposure to violence and other inappropriate conduct at a formative age, which forced
                                                                                        -11-


J.H. to focus on survival rather than normal learning.

      {¶ 27} Morrow‘s therapy with J.H. focused on relationship building, developing a

sense of safety in his foster home, skill development (like appropriate play), “self-

regulation,” and helping J.H. to recognize and cope with the role of trauma in his life

without letting it define him. In Morrow’s view, the foster parents and anyone else caring

for J.H. needed to play an important role in his therapy. Mother did not participate in

therapy with J.H.; she had expressed an interest in doing so one time, but never followed

through.

      {¶ 28} J.H.’s first foster family placement began with some difficulty and

frustration, but as the foster parents learned skills to deal with J.H.’s behavior, the

situation improved significantly. J.H. began to do better at school, to follow house rules,

and to feel safe, and love developed between J.H. and the foster parents. However, in

late 2013, some troubling behaviors resurfaced as J.H. rebelled against seeing his mother

(whom he had not seen for many months); “some sexual stuff” began to emerge again,

including inappropriate play with the foster parents’ son and references to sexual movies

he had seen.

      {¶ 29} According to Morrow, J.H. expressed some interest in seeing his mother,

but also expressed fear at the prospect that she would bring men with her, expose him to

“mean people,” and make him watch scary movies; he also suggested that he wanted to

see his mother to “get stuff” from her. When J.H. did visit with his mother, she gave him

a cell phone without asking permission of the caseworker or foster parents. Morrow

suggested that this increased communication with Mother contributed to J.H. “grow[ing]

more and more disconnected from his foster parents and * * *           extremely defiant,”
                                                                                          -12-


although these conditions improved some when the phone was taken away. Around this

time, J.H.’s behavior at school also began to deteriorate, and he experienced higher

anxiety.

       {¶ 30} In late spring or early summer 2014, J.H. learned from his foster family that

he was going to be placed in a different foster home. According to Morrow, this change

led to sadness, fear, and anxiety, because J.H. did not deal well with chaos in his life.

However, J.H. did not express a desire to live with his mother except to “get things.”

J.H.’s adjustment to a new foster family was difficult, and Morrow testified that he became

“pretty closed down.” J.H. had reverted to seeing his persona as a “bad boy” in the new

foster home, but Morrow was confident that the new placement would improve with time,

just as the first placement had.

       {¶ 31} Morrow testified that J.H. needs stability, order, safety, routine, sleep

(because he lives under a high degree of stress, which is very tiring), play time (to

discharge anxiety), predicable and appropriate interactions with caregivers, loving

discipline, and emotionally mature adults in his life who model responsible behavior.

“[T]his is a child who tends to want to go – wants to color outside the lines. So if you have

an adult who also colors outside the lines, he – that’s where he’s going to move. That’s

his tendency.” Morrow also stated that J.H. needs to be with adults who set firm limits,

because J.H. will push against them. J.H. will need a lot of patience from adults for a

long time, and needs a trustworthy person to manage his ADHD medication, which is a

controlled substance.    Finally, Morrow testified that J.H. “has poor boundaries when it

comes to other people,” and she worried that, “if we don’t get that shored up, he’s going

to become a risk to – a risk to other people.”
                                                                                        -13-


       {¶ 32} Allene Anderson worked with Mother on parenting education through

Celebrating Families of Children and Adults with Special Needs, following a referral from

MCCS.      Anderson testified that Mother’s children satisfied the agency’s criteria for

services, and that she worked with Mother from June 2013 through July 2014. Anderson

counseled Mother about rules and responsibilities, being a caregiver and an advocate for

a child, and appropriate methods of discipline.        However, Anderson testified that

Mother’s attendance was “real sporadic”; Mother was supposed to attend weekly

sessions, but she missed many of them. In approximately one year, Mother attended

about 30 of 54 sessions. Moreover, when Mother did attend, she often claimed to be

sick, was sweating, and would leave early.

       {¶ 33} According to Anderson, Mother frequently talked about J.H.’s “difficult

behavior” but would not be very specific, and Mother “always wanted to call somebody to

help her.” Mother also attributed her involvement with MCCS to the behavior of others,

like her ex-husband’s domestic violence. Her plan for caring for J.H. if he were returned

to her custody relied heavily on the help of family members, although her relationship with

her family was rocky.

       {¶ 34} Alexa Jackson, a case manager at Eastway Corporation, an outpatient

mental health center, was involved with Mother’s case for two years. The primary goals

for Mother’s treatment were to make sure she met regularly with her psychiatrist, to take

her medication as directed, to develop skills to reduce her anxiety and improve her sleep,

and to obtain stable housing. Jackson testified that Mother was “mostly,” but not entirely,

compliant with her individual therapy goals and with their monthly meetings. At the time

of the hearing, Mother had recently claimed during one of their meetings that her
                                                                                         -14-


medications had been stolen by “some guy she let stay with her.” Mother also reported

that she was “substance free” while seeking a referral to Nova House for additional

substance abuse treatment.

       {¶ 35} In finding that it was in J.H.’s best interest to place him in MCCS’s

permanent custody, the trial court’s judgment noted J.H.’s many psychological and

emotional issues, Mother’s failure to participate in therapy with him, the chaotic nature of

their visits, and the regression of J.H.’s behaviors following contact with Mother. The

court found that the nature of J.H.’s relationship with his Mother weighed in favor of

granting permanent custody to MCCS.         The court also noted J.H.’s distress at the

prospect of being placed with Mother, his relative success in foster care, and his

“desperate need [for] a legally secure, permanent placement.” The court found that

Mother had not completed her case plan, was not “suitable” for custody of J.H., and that

J.H. could not be placed with Mother within a reasonable period of time.

       {¶ 36} The record contains competent, credible evidence from which the court

could have concluded that the statutory elements for a termination of parental rights had

been established and that it was in J.H.’s best interest to grant permanent custody to

MCCS. The assignment of error is overruled.

       III.   Conclusion

       {¶ 37} The judgment of the trial court will be affirmed.

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

DONOVAN, P.J. and FAIN, J., concur.
                       -15-




Copies mailed to:

Kirsten A. Brandt
Marshall G. Lachman
Cynthia Westwood
Al Minor
Steven Abshire
Daniel Brinkman
Hon. Anthony Capizzi