[Cite as In re R.P., 2015-Ohio-4295.]

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

         IN RE:                                :   Appellate Case Nos. 26744
                                               :   Appellate Case Nos. 26754
                       R.P.                    :
                                               :   Trial Court Case No. JC 2011-2333
                                               :
                                               :   (Juvenile Appeal from
                                               :    Common Pleas Court)
                                               :
                                               :

                                         ...........
                                         OPINION
                           Rendered on the 16th day of October, 2015.
                                         ...........

MATHIAS H. HECK, JR., by MICHELE PHIPPS, Atty. Reg. No. 0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Appellee, Montgomery County Children Services

THOMAS G. KOPACZ, Atty. Reg. No. 0091202, Holzfaster, Cecil, McKnight & Mues,
1105 Wilmington Avenue, Dayton, Ohio 45420
      Attorney for Appellant-Father

MARK A. FISHER, Atty. Reg. No. 0066939, Staton, Fisher & Conboy LLP, 5613 Brandt
Pike, Huber Heights, Ohio 45424
       Attorney for Appellant-Mother
                                    .............

HALL, J.

        {¶ 1} R.P. (Father) and S.P. (Mother) appeal separately from the trial court’s
                                                                               -2-

judgment entry terminating their parental rights and awarding appellee Montgomery

Country Children Services (MCCS) permanent custody of their child R.P.1

       {¶ 2} In two related assignments of error, Father claims the trial court’s findings

regarding the best interest of the child being served by awarding MCCS permanent

custody are against the weight of the evidence. In her sole assignment of error, Mother

likewise contends the trial court’s best-interest findings are against the weight of the

evidence.

       {¶ 3} The record reflects that MCCS initially became involved in February 2011

after receiving a referral involving allegations of neglect. Specifically, MCCS received

information that R.P., who was born in 2009, and another child in Father and Mother’s

home were dirty, smelled of urine, and had bedbugs and lice. (Tr. at 20). At that time,

caseworker Cheryl Larcom observed filthiness in the home, roaches in the kitchen, and

a hazardous hole in the ceiling. (Id. at 22). The home’s yard was strewn with trash and

debris. (Id.). Larcom discussed the situation with Father and Mother and provided case-

management and referral services. (Id. at 24). Although no children were removed from

the home on that occasion, Larcom filed a March 2011 dependency complaint with regard

to R.P.2 (Doc. #159).

       {¶ 4} In July 2011, the trial court adjudicated R.P. dependent. (Doc. #144). MCCS

subsequently obtained interim temporary custody in May 2012, and R.P. was placed in

1 We note that Father and the child at issue have the same initials. For purposes of our
analysis herein, we will use the initials R.P. only when referring to the child. We will refer
to the child’s parents as “Father” and “Mother.”
2Although Mother has other children, they are not the subject of the present appeal,
which concerns only the trial court’s permanent custody decision regarding R.P.
                                                                               -3-

foster care. (Doc. #133). The trial court made this disposition based, in part, on its finding

that the child’s home lacked running water and remained “filthy” and “unsanitary.” (Id.).

Thereafter, in August 2012, the trial court issued a full temporary custody order in favor

of MCCS. (Doc. #117). The trial court extended that award of temporary custody in June

2013 and in April 2014 to allow Father and Mother to work on their case plans. (Doc. #54,

96).

       {¶ 5} On April 29, 2014, MCCS moved for permanent custody of R.P. (Doc. #56).

A magistrate held an August 8, 2014 hearing on that motion after the second extension

of temporary custody expired. At the hearing, the magistrate heard testimony from Father,

Mother, Father’s probation officer, three MCCS case workers, and a court-appointed

psychologist who had evaluated Father and Mother. The magistrate also heard from

R.P.’s guardian ad litem. Based on the evidence presented, the magistrate filed an

October 9, 2014 decision awarding MCCS permanent custody. (Doc. #24). Father and

Mother separately filed objections and supplemental objections. (Doc. # 8, 10, 21, 23).

On June 16, 2015, the trial court overruled the objections. It also found that R.P. had been

in MCCS’ custody for more than 12 months of a consecutive 22-month period, that Father

and Mother had not completed their case-plan objectives, and that an award of permanent

custody to MCCS was in the child’s best interest. (Doc. # 5). This expedited appeal by

Father and Mother followed.

       {¶ 6} A trial court’s decision to grant permanent custody and to terminate parental

rights must be supported by clear and convincing evidence. In re L.C., 2d Dist. Clark No.

2010 CA 90, 2011-Ohio-2066, ¶ 14. We apply an abuse-of-discretion standard, and we

will not disturb such a decision on evidentiary grounds “if the record contains competent,
                                                                               -4-

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.”

(Citation omitted). Id.; see also In re S.S., 2d Dist. Miami No. 2011-CA-07, 2011-Ohio-

5697, ¶ 7. The phrase “abuse of discretion” implies a decision that is unreasonable,

arbitrary, or unconscionable. Id. Therefore, a trial court’s act of overruling a parent’s

objections and adopting a magistrate’s decision terminating parental rights cannot be

reversed based on a mere difference of opinion or substitution of our judgment for that of

the lower court. Id.

       {¶ 7} Having identified our standard of review, we turn now to the substantive

issues before us. The standards governing permanent-custody motions are as follows:

              R.C. 2151.414 establishes a two-part test for courts to apply when

       determining a motion for permanent custody to a public services 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(D) directs the trial court to consider all relevant factors

       when determining the best interest of the child, including but not limited to:
                                                                               -5-

       (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.

In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶ 14-15.

       {¶ 8} Here the trial court made the findings required to award MCCS permanent

custody. Specifically, it found, among other things, that R.P. had been in the agency’s

temporary custody for more than 12 months of a consecutive 22-month period and that

an award of permanent custody to the agency was in the child’s best interest. On appeal,

neither Father nor Mother challenges the trial court’s “12 in 22” finding, which is supported

by the record. Therefore, the only remaining issue is whether the trial court’s best-interest

finding is supported by clear and convincing evidence. In re M.R., 2d Dist. Greene No.

2010 CA 64, 2011-Ohio-3733, ¶ 25. In its decision, the trial court made the following

findings with regard to each of the statutory best-interest factors:

              * * * Pursuant to R.C. 2151.414(D)(1), to determine if it is in the best

       interest of the child to permanently terminate parental rights and grant

       permanent custody to MCCS, the Court shall consider all relevant factors,
                                                                               -6-

including, but not limited to, the following:

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

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

and any other person who may significantly affect the child.

         Angela Polla[r]d, the ongoing caseworker for the child from February

2011 to November 2012, and Kevin Foley, the current ongoing caseworker

from Montgomery County Children Services for the child, both testified that

the child appears to be bonded to his foster parents. (Tr. 62:9) Mr. Foley

also testified that both Mother and Father are fairly bonded with the child.

(Tr. 85:3; 126:4, 126:10) Dr. Rhonda Lilley, the psychologist who has

worked this case and evaluated the parents, agrees that the child is bonded

with his Mother. (Tr. 155:15) Finally, Father himself believes that he has a

strong bond with his son. (Tr. 271:22) Based on the foregoing, the Court

finds that this factor does not weigh in favor of granting permanent custody

to MCCS.

         b) The wishes of the child, as expressed directly by the child or

through the child’s guardian ad litem, with regard for the maturity of this

child.

         The child is too young to express an opinion as to custody.

         c) The custodial history of the child.

         The child was removed from the home and placed into the custody

of MCCS in May 2012. (Tr. 97:23) Since that time the child has remained in

the custody of MCCS. The parents have failed to take the appropriate action
                                                                               -7-

to regain custody of their child for almost thirty-six months.

       Based on the foregoing, the Court finds that this factor weighs in

favor of granting permanent custody to MCCS.

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

whether that type of placement can be achieved without granting permanent

custody to the Agency.

       Interim Temporary Custody was granted to MCCS on May 9, 2012,

and Temporary Custody was granted to MCCS on August 21, 2012, due to

the condition of the parents’ home. On June 5, 2013, the first extension of

Temporary Custody was granted. The second extension of Temporary

Custody was granted orally in Court on April 15, 2014, and the Decision

docketed on April 29, 2014. Both available extensions of temporary custody

have been utilized. MCCS filed the most recent Motion and Affidavit for the

Commitment to the Permanent Custody of MCCS on April 29, 2014, and a

hearing on the Motion was held on August 8, 2014. On October 9, 2014, the

Magistrate’s Decision and Judge’s Order Granting the Motion for

Permanent Custody was filed by Magistrate Durden.

       The child has spent a good portion of his life in the custody of MCCS

and over thirty-six months in foster care. Considering the length of time the

child has been removed from the home, and the fact that both extensions

of temporary custody have been granted, the Court finds that the child is in

desperate need of a legally secure, permanent placement. Mr. Rezabek,

GAL, recommended permanent custody to MCCS in his August 7, 2014,
                                                                               -8-

Updated GAL Report to the Court.

      As required by R.C. 2151.412, MCCS developed a case plan for both

Mother and Father. The most recent case plan was adopted by the Court

on April 29, 2014. Both Mother and Father, together with the child, were

included on the case plan. (Tr. 74:18) Ms. Polla[r]d and Mr. Foley each

reviewed and discussed the case plan with Mother and Father. (Tr. 34:23,

75:1, 88:17, 235:4) Neither Mother nor Father gave any indication to Ms.

Polla[r]d or Mr. Foley that they did not understand the case plan. (Tr. 35:1,

75:5, 88:2, 235:4) In fact, Mother herself specifically testified that she

reviewed the case plan with Mr. Foley, she understood what she was

required to do, and she underst[ood] that in order to be reunited with her

son that the housing needed to be acceptable. (Tr. 235:4)

      The case plan objectives for Mother were as follows: maintain clean

and stable housing; maintain stable income; be involved in making sure that

there are hygiene supplies for the children; participate in parenting and

psych evaluation; and sign releases of information. (Tr. 75:9)

      The objectives for Father were as follows: maintain clean and stable

housing; maintain verifiable proof of income; sign releases of information;

participate in parenting and psychological evaluation; and to be involved in

anger management.

      Maintaining the dental needs of the child was not part of either

parent’s case plan. (Tr. 64:18)

      Unfortunately, while there was progress made on the case plan, not
                                                                               -9-

all the objectives were met by either parent. (Tr. 35:4)

       The general concern of the agency was that they had not seen

enough of a stable consistency of the house being clean. (Tr. 79:9) MCCS

made it clear to the parents that the home needed to be clean and stable

for a minimum of six months before they could consider reunification with

the child. (Tr. 79:14)

       Mother has failed to meet her case plan objectives. Mother has not

completed the objective of six months maintenance of a clean home. (Tr.

79:18) MCCS’s objective for Mother obtaining her own income was

necessary because MCCS wanted to be able to verify that Mother could

maintain the home beyond a reasonable period of time on her own. (Tr.

79:21). Mother has not provided a proof of income and it is unknown to

MCCS if Mother is currently employed. (Tr. 80:3, 80:6) Mother has provided

MCCS with documentation that she filed to incorporate a home preservation

business in June 2014. (Tr. 80:7) However, when Mr. Foley inquired as to

any income she has received, she indicated that she had not received any

income from any of the work she had done for the business. (Tr. 80:11) Mr.

Foley spoke with Mother repeatedly about going back to work or going to

the job center. (Tr. 80:22) Mother stated that she didn’t feel she was

physically able to work. (Tr. 80:24). Neither parent has followed up with any

of the income related referrals or recommendations. (Tr. 81:1).

       Mother states that she has shampoo, conditioner, lotion, towels,

deodorant, and cologne waiting for her son’s return. (Tr. 214:5) Father
                                                                               -10-

agrees, noting that they have a home and travel set of hygiene supplies for

the child. (Tr. 270; 16)

       In January of 2013, Mother completed a parenting and psychological

evaluation. (Tr. 81:13) Mother has just recently begun to follow the

recommendation that she return to mental health counseling despite the

recommendation having been made several months ago. (Tr. 81:9) Mr.

Foley had made monthly referrals for Mother to follow through with Crisis

Care, to supply Day-Mont with her phone number, and to reengage with

mental health services each month. (Tr. 81:20). However, from January

2013 through July 2014, Mother had failed to re-engage. (Tr. 82:2)

       Mother engaged in mental health treatment with Mahajan

Therapeutics in July of 2014. (Tr. 81:15) While progress has been made on

this objective, the objective is not complete. (Tr. 82:9)

       Mother’s objective to sign releases of information is necessary so

that the Agency can communicate with providers and coordinate care and

make sure that compliance with care was followed through with properly.

(Tr. 82:12) Mother has failed to provide or sign all releases of information

as instructed. (Tr. 82:20) Mother has only provided two signed releases

throughout the course of this case. (Tr. 82:21). First, Mother signed a

release in April 2014 only after significant pressure from the Court. (Tr.

82:22) Then in July of 2014, Mother signed a release to allow MCCS to

speak with Mahajan Therapeutics. (Tr. 82:25)

       Maintaining stable housing is necessary for re-unification because
                                                                               -11-

there were significant concerns about keeping utilities in the home on,

keeping the child properly cleaned, and the dental care of the child. (Tr.

86:14). MCCS states that the parents need to reengage and demonstrate

that they can meet those needs on an ongoing basis. (Tr. 86:19) So far the

parents have been unable to demonstrate that they are ready to reunify with

the child. (Tr. 87:3) MCCS notes that Mother has taken a step in the right

direction with keeping the home cleaner. (Tr. 87:7) However, MCCS feels

that Mother would also need to maintain involvement with mental health

care to help her meet the physical, mental, and emotional needs of the child.

(Tr. 87:12) MCCS is also concerned about possible domestic violence in

the parents’ home. (Tr. 87:16). Mother had expressed concerns to the

child’s foster mother about domestic violence in the home against her by

Father. (Tr. 87:18) Specifically, instances in which Father prevented Mother

from going to the door to answer the knocks of the MCCS caseworker to

get entry into the home and allegations that Father had beat on Mother’s

back. (Tr. 87:21)

      MCCS had two primary concerns before reunification was possible.

(Tr. 86:3) First, MCCS was concerned that they had not seen a stable

maintaining of the household such that the parents would be ready to begin

reunification with the child. (Id.). Additionally, MCCS was concerned

because Mother has not done a good job of following through with returning

to mental health counseling and addressing her issues. (Id.) Mother failed

to meet the two most important objectives. Mother failed to maintain clean
                                                                               -12-

and stable housing, and failed to maintain a stable income. Mother did

secure hygiene supplies for the child, did participate in parenting and psych

evaluation, and did sign releases of information, albeit after significant

pressure from the Court. Mother simply has failed to fulfill her case plan

objectives.

       Father has made minimal progress on his case plan objectives.

Father has made some progress on the anger management objective. (Tr.

89:16) Documentation received through a release from CADAS indicated

that Father was involved in treatment in 2009. (Tr. 89:18) However, there

has been no proof of any completion of any anger management course. (Tr.

89:20) While Father has worked very hard to maintain the utilities to the

home, he has been unable to keep all the utilities stable for the required six

month period of time. (Tr. 91:2) Father simply has not been able to maintain

the home for a six month period of time. (Tr. 95:7) In April 2014 MCCS

received documentation from February 2014 indicating Father was

employed by Safe Home Preservation Program and was earning a small

amount of money at a stable rate. (Tr. 92:23) However, no pay stubs have

been provided. (Tr. 92:3) The case plan objective for income is not

completed but in progress. (Tr. 92:18) Father has not followed through with

any recommendations concerning mental health counseling, and while he

did complete the parenting and psychological evaluations he failed to follow

through with any referrals or recommendations from the evaluation. (Tr.

92:22; 93:8) In regard to signing releases, Father has only signed one
                                                                               -13-

       release throughout the course of this case and that was accomplished after

       court involvement. (Tr. 93:16) Regardless of how or when it was

       accomplished, the objective in regard to signing releases has been

       completed. (Tr. 93:24)

               Father has failed to maintain clean and stable housing and has failed

       to maintain verifiable proof of income[.] Father did sign releases for

       information, did participate in parenting and psychological evaluations, and

       was involved in anger management. Father has failed to achieve his case

       plan objectives.

               Based on the above, the Court finds that the child cannot and should

       not be placed with Mother or Father within a reasonable period of time. In

       light of the foregoing, the Court finds that a legally secure, permanent

       placement cannot be achieved without granting permanent custody to

       MCCS. Accordingly, the Court finds that this factor weighs heavily in favor

       of granting permanent custody to MCCS.

               e) Whether any of the factors in R.C. 2151.414(E)(7)-(11) apply in

       relation to the parents and child.

               None of the R.C. 2151.414(E)(7)-(11) factors apply in the present

       case.

(Doc. #5 at 4-8).

       {¶ 9} Based on the foregoing analysis, the trial court concluded:

               After considering all relevant factors, the Court finds that permanent

       custody to MCCS is in the best interest of the child. Neither Mother nor
                                                                               -14-

        Father have completed their case plan and neither are a suitable option for

        custody of the child. While both parents seemed to make more of an effort

        to work on their case plan objectives in the past few months, this is

        unfortunately an example of too little, too late. All extensions of temporary

        custody have been granted and the Court finds that the child is in desperate

        need of a legally secure, permanent placement.

               The Court finds that a legally secure, permanent placement for the

        child cannot be achieved without granting permanent custody to MCCS. In

        light of the foregoing, the Court finds that clear and convincing evidence

        was presented showing that permanent custody to MCCS is in the best

        interest of the [child].

(Id. at 8).

        {¶ 10} On appeal, Father stresses that he is bonded with R.P. and that he visited

appropriately with the child while the case was pending below. (Father’s brief at 12).

Father further argues that he made many repairs to the parties’ home in the months prior

to the permanent-custody hearing. (Id. at 13-14). Father also asserts that he maintained

necessary utility service to the home in the six-month period preceding the hearing,

except for a temporary water shut off to repair broken pipes. (Id.). Although Vectren gas

service had not been re-established at the time of the hearing, Father argues that it was

not needed given the summer season and that he intended to convert the home to electric

heat in the future anyway. (Id. at 13-14). With regard to income, Father contends that he

can support R.P. though his employment as a handyman with Safe Home Preservation

Program. Finally, Father argues that he participated in parenting and psychological
                                                                               -15-

evaluations, signed releases, and had been referred for anger-management treatment.

While conceding that he did not complete every case-plan objective, Father insists that

he made “remarkable progress” and that “[t]his should not be considered a too little too

late case[.]” (Id. at 15).

       {¶ 11} As for Mother, she challenges the trial court’s analysis and weighing of the

statutory best-interest factors. Her primary focus, however, is on R.P.’s need for a legally

secure permanent placement and whether that type of placement can be achieved

without granting permanent custody to MCCS. (Mother’s brief at 14-15). On that issue,

Mother contends a legally secure placement can be made with her and Father. She

asserts that R.P. is well bonded with them, that their house is appropriate (and had been

appropriate for at least two months prior to the permanent custody hearing), and that she

“arguably substantially completed all of her case plan objectives.” (Id. at 14). Therefore,

she contends the evidence supports a finding that she and Father can care for R.P. (Id.).

       {¶ 12} Upon review, we see no error in the trial court’s best-interest findings, which

are supported by clear and convincing evidence. The record reflects that Father and

Mother have a history of failing to provide suitable, sanitary living conditions. When MCCS

initially became involved, their home was described as “filthy” with cockroaches in the

kitchen and trash and debris strewn around the yard. (Tr. at 22). At that time, Mother

admitted having had problems with lice and bedbugs but claimed to have gotten rid of

them. (Id. at 21). Thereafter, Father and Mother moved to a different location. An MCCS

caseworker testified that that house was fine initially but “started to go downhill

progressively.” (Id. at 35). The caseworker described things such as no running water, a

toilet filled with feces and urine, moldy food, broken glass, and a strong odor inside the
                                                                               -16-

home. (Id. at 36). Mother and Father later moved to their current home. Mother testified

that they had spent several months prior to the permanent-custody hearing renovating

that house. (Id. at 236). Father testified that his own father actually owned the house.

According to Father, he and Mother were living there rent free. (Id. at 260). Father

confirmed that he had performed major renovation work on the house. (Id. at 261).

      {¶ 13} At the time of the permanent-custody hearing in August 2014, however,

caseworker Kevin Foley testified that their current house was cluttered and in need of

“constant cleaning” and that renovation work remained ongoing. (Id. at 78). Foley also

noted that shortly before the hearing, he had been denied access to the basement and

the upstairs rooms. (Id.). In Foley’s opinion, he “had not seen enough of a stable

consistency in terms of that house being clean.” (Id. at 79). We note too that Vectren gas

service remained shut off. When questioned about that issue, Mother acknowledged

having a delinquent Vectren bill. (Id. at 198). Although she and Father hoped to convert

to electric heat to avoid needing Vecten’s services for the upcoming winter, Mother

admitted that they had not bought all of the supplies to make the conversion because “it

takes money.” (Id. at 199). In addition, while electric service had been restored to the

home, Father acknowledged having an unpaid bill of $3,785 with the Dayton Power &

Light Company. (Id. at 265).

      {¶ 14} With regard to income, the record reflects that Mother had started a home-

preservation business a few months before the permanent-custody hearing. (Id. at 80,

219). In her testimony, however, she was able to identify just one invoice for $710 that

had been sent out for work performed by her company. (Id. at 216). Net of expenses, she

anticipated receiving about $40. (Id. at 248-249). Her only other income consisted of $347
                                                                               -17-

per month in food stamps. (Id. at 223, 256). Despite her limited income, Mother failed to

follow up with any job-related referrals or recommendations. (Id. at 80-81).

       {¶ 15} As for Father, he provided documentation from February 2014 indicating

that he worked for the Safe Home Preservation Program (which apparently was unrelated

to Mother’s business). (Id. at 92). Thereafter, MCCS never was able to verify any income

for Father. (Id.). At the hearing, Father testified that he was a “general handyman” who

worked by the job. (Id. at 269-270). He stated that he did not receive pay stubs and that

any income he earned went directly into his bank account. (Id. at 270). Father explained

that he had not done any work for the Safe Home program for “a while,” however, because

he had been incarcerated. In fact, he had just been released from jail following his June

23, 2014 arrest for carrying a concealed weapon while on probation for prior offenses of

receiving stolen property, theft, and misuse of a credit card. (Id. at 14, 273, 278). When

questioned about any bank statements showing deposits into his account, Father

expressed confidentiality concerns and opined that he “shouldn’t have to show my monies

to an open court.” (Id. at 274).

       {¶ 16} In light of the evidence before us and the trial court’s findings, we see no

error in its determination that an award of permanent custody to MCCS was in R.P.’s best

interest. The record supports the trial court’s “too-little-too-late” concerns about Father

and Mother progressing on their case plans, particularly with regard to the housing and

income requirements. The record also supports the trial court’s finding that a legally

secure placement could not be obtained without an award of permanent custody to

MCCS. Although the current foster home was not an adoptive one, the record reflects

that MCCS anticipated quickly moving R.P. into an adoptive home after obtaining
                                                                               -18-

permanent custody. (Tr. at 139).

       {¶ 17} While Father and Mother admittedly made progress on their case plans, that

fact is not dispositive of their child’s best interest. The trial court is best positioned to

weigh the various best-interest factors, and an award of permanent custody to the State

can be appropriate even when just one of those factors supports such a disposition. In re

N.Q., 2d Dist. Montgomery No. 25428, 2013–Ohio–3176, ¶ 71–72. Because the trial

court’s multiple best-interest findings here are supported by clear and convincing

evidence, the appellants’ assignments of error are overruled.

       {¶ 18} The judgment of the Montgomery County Common Pleas Court, Juvenile

Division, is affirmed.

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

FROELICH, P.J., and FAIN, J., concur.

Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Thomas G. Kopacz
Mark A. Fisher
Hon. Anthony Capizzi


967 A.2d 181 (2009)
407 Md. 528
ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Craig T. KIMMEL.
Misc. Docket AG No. 20, September Term, 2007.
Court of Appeals of Maryland.
March 11, 2009.

ORDER
ROBERT M. BELL, Chief Judge.
This matter came on before the Court on the Petition of Craig T. Kimmel to be reinstated to the Bar of this Court.
The Court having the Petition for Reinstatement and the Response of Bar Counsel, it is this 11th day of March, 2009
ORDERED by the Court of Appeals of Maryland, a majority of the Court concurring, that the Petition for Reinstatement be, and it is hereby, GRANTED; and it is further
ORDERED, pursuant to Maryland Rule 16-781(k)(3), that the Clerk of this Court shall remove the Petitioner's name from the list maintained in this Court of non-admitted attorneys who are ineligible to practice law in this state and certify that fact to the Board of Law Examiners, the Trustees of the Client Protection Fund of the Bar of Maryland and to the Clerks of all judicial tribunals in this State.


                               Cite as 2016 Ark. App. 401

                ARKANSAS COURT OF APPEALS
                                      DIVISION II
                                     No. CV-16-205

                                             Opinion Delivered   SEPTEMBER 14, 2016
PATRICIA GARRETT
                                      APPEAL FROM THE SALINE
                            APPELLANT COUNTY CIRCUIT COURT
V.                                    [NO. 63JV-2014-312]

ARKANSAS DEPARTMENT OF       HONORABLE GARY ARNOLD,
HUMAN SERVICES AND MINOR     JUDGE
CHILD
                   APPELLEES AFFIRMED

                           DAVID M. GLOVER, Judge

       By order entered April 7, 2016, our supreme court granted Patricia Garrett’s motion

for belated appeal, and this appeal from the termination of her parental rights to her

daughter, K.C. (d.o.b. 8-25-2010), followed. She challenges the sufficiency of the evidence

supporting the termination, and she also contends she was not provided with adequate

accommodation under the Americans with Disabilities Act (ADA) when she was denied

more time to complete services. We affirm.

       K.C. was taken into the custody of the Arkansas Department of Human Services

(DHS) in July 2014. The trial court found probable cause to continue temporary custody

following a July 29, 2014 hearing, and then, following an August 25, 2014 adjudication

hearing, the trial court found the child was dependent-neglected. The trial court expressed

its concern about Garrett’s drug use and ordered her to cooperate with DHS and undergo

a psychological evaluation. Garrett’s refusal to submit to DHS drug screens and undergo an
                                Cite as 2016 Ark. App. 401

intensive outpatient drug-treatment program was a continuing problem throughout the

case. The goal of the case was changed to termination following a June 22, 2015

permanency-planning hearing. DHS filed a motion to terminate Garrett’s parental rights on

July 9, 2015, and the termination hearing was held over two days—September 21, 2015,

and October 26, 2015. The order terminating Garrett’s parental rights was entered

November 9, 2015.

       At the termination hearing, Dr. Paul DeYoub, a forensic psychologist, testified he

had evaluated Garrett; she was forthright and cooperative; she had a history of substance

abuse and major depression; and her test results demonstrated “very significant depression,

personality problems, substance abuse, difficulty coping, great deal of dependency, feelings

of inadequacy, history of unstable abusive relationships, multiple hospitalizations for

depression, major depression, methamphetamine abuse and alcohol abuse throughout her

adult life.” He explained that for her to be an adequate parent, she would have to completely

recover from her substance-abuse issues; she would require individual counseling,

medication management, and ongoing outpatient treatment for substance abuse; and she

would need to be observed for six months to a year to make sure she was no longer drug

dependent, no longer needed in-patient mental health treatment, and could avoid abusive

relationships. He further explained the child had observed Garrett being beaten by the

child’s father. He stated if Garrett’s only problem were major depression, it could be

properly managed and she could care for the child, but she also suffered from dependent-

personality issues, substance-abuse problems, and poor relationship choices, which made

parenting difficult.

                                             2
                                Cite as 2016 Ark. App. 401

       The trial court asked Garrett’s counsel if she was still refusing DHS drug screens.

Counsel explained she had submitted to drug screening at the Counseling Clinic and she

had one test through DHS very early on that was positive and then had refused others

administered by DHS.

       Kenneth Arnold, a substance-abuse coordinator and counselor, testified his

therapeutic relationship with Garrett began on July 13, 2015. He explained she was very

attentive and participatory in group; she understood the necessary changes she has to make;

she tested positive for methamphetamine when she first came into the program; she was

screened every Monday and had received seven tests; and with the exception of the first

test, the results had been negative. As of the hearing date, she had completed thirty-two

hours of intensive outpatient treatment. Arnold described Garrett’s drug use as “moderate,”

explaining that it had been severe in the past to the point she could not function. He stated

she needed to continue the recovery process, but she had maintained sobriety during the

three months she had been in the program. He expressed his belief she could maintain

sobriety.

       Kathleen Armstrong, an adoption specialist for DHS, testified she ran an adoption

match for K.C. that came back with 162 possible adoptive family placements, and she felt

she would be highly successful in identifying an appropriate family for the child, despite the

child’s problems with aggression, self-abuse, temper tantrums, and lying.

       Boyce Barger, the child’s counselor, testified he had been seeing the child since the

fall of 2014; the behaviors described by the adoption specialist had been treated with

behavior-modification approaches; and there had been a dramatic reduction in the behavior.

                                              3
                                Cite as 2016 Ark. App. 401

He attributed the results to the stability in the foster parents’ home. He said he would

diagnose the child with adjustment disorder, anxiety, and neglect. He stated the child was

very attached to her mother, spoke of her with affection, and wanted to live with her. He

expressed his belief that if the child were moved into an adoptive home, her behaviors

would restart and need to be addressed again. However, he also stated the child needed to

be in a home that provided a very well-defined and appropriate structure with predictable

outcomes and consequences for appropriate and inappropriate behavior; and she would need

affection. He acknowledged he had not observed Garrett and the child interact, and he

would not know if the child had an attachment disorder or like disorder with her mother

unless he was able to observe them interact. Barger explained that there were no hard and

fast lines where a patient is required to comply with a case plan before beginning family

therapy; family therapy would be counterproductive when the case seems about to fall apart

because a child needs permanency; and there was never any discussion with DHS about

Garrett’s progress and the need for family therapy.

       Craig Jones, Garrett’s licensed certified social worker and outpatient therapist,

testified that her compliance had been bumpy; that it went from semicompliant to a long

drought of noncompliance to improved compliance. He stated he began to see improved

compliance around July 2015, which coincided with her admission into the intensive

outpatient drug-treatment program. He explained that Garrett completed parenting and

anger management early on but around January 2015, she became inconsistent with services;

that she missed her initial intake evaluation for IOP services and then missed several

counseling appointments; that she missed her psychological evaluation and a psychiatric

                                             4
                                 Cite as 2016 Ark. App. 401

evaluation; that Garrett had not resumed her medication regimen as of August 30; and that

he believed it was because she was without funds to pay for the medication (lithium). He

said he did not recommend an increase in visitation because more progress needed to be

made. He agreed with Dr. DeYoub’s opinion that she could potentially parent the child if

she completed long-term drug-and-alcohol treatment and got her medication. He stated

Garrett had expressed significant doubts about the validity of the drug tests performed by

DHS; she agreed to take drug tests administered by other people, just not DHS; he believed

her refusal to take the DHS drug test arose out of a feeling of powerlessness, things out of

her control, and feeling threatened; and he attributed it to her mental illness, domestic

violence, and her child being removed. He stated she was beginning to overcome that sense

of powerlessness; she needed to continue counseling, maintain her sobriety and medication

and appointments; and he believed she could demonstrate her stability and willingness to

improve with additional time. He acknowledged there were two or three times over the

course of the case that medication compliance became an issue; failure to maintain her

medication regimen could have a profound impact upon her; lithium has a quick washout

time in the sense that it does not take long to leave a person’s system and reduce its

effectiveness; her severe depression returned without medication for a period of time; she

has issues dealing with stress; she is redirectable and can calm down with support; her stress-

management capacities are somewhat limited; she shuts down and is tearful when stressed;

there was one point when she stopped coming to see him because she believed that

reunification was hopeless; she became reinvigorated and was doing what she was supposed

to do to reunify with her child; some of the missed appointments at the beginning of the

                                              5
                                Cite as 2016 Ark. App. 401

year were because of weather issues; and her medication regimen currently did not include

the use of lithium. He said he believed increased visitation could start somewhere around

December, and he thought six more months were needed to get to a trial home visit.

       Erin Descoteaux, caseworker, testified she was assigned to the case at the end of

August 2015; she had reviewed the file and ascertained that Garrett’s progress with the case

plan was as follows: she completed parenting and anger-management classes; she participated

in a drug-and-alcohol assessment as well as a psychological evaluation; she participated in

intensive outpatient drug treatment and was still in counseling at the Counseling Clinic; she

had her own home; she had Social Security income; she attended AA/NA meetings; and

since the last hearing in September she had taken two drug screens for DHS, both of which

had been negative. She stated the petition to terminate was filed on July 9, 2015. She

explained Garrett did not begin intensive outpatient drug treatment until July 13, 2015. She

stated counseling and outpatient drug treatment were the only two services that were not

completed prior to the filing of the petition to terminate but that those were the two most

significant areas of concern. She said Garrett had appropriate housing and had been

appropriate at visits with the child throughout the case, but she had not paid any child

support. She stated she was aware Garrett was submitting to drug screens at Counseling

Clinic and she trusted those test results. She stated Garrett has mental-health issues. She

acknowledged that DHS is subject to the Americans with Disabilities Act; that Garrett had

completed most of her services but they needed to see a long period of stability in her

services, sobriety from all substances, stable mental health, and maintenance of her

medications and counseling. She explained they had asked Garrett for names of relatives

                                             6
                                 Cite as 2016 Ark. App. 401

who might be able to take the minor child, and she provided her adult son’s name; there

were no problems with his background checks, but he lived with her and they did not know

if he had the means to support the child on his own. She acknowledged the child receives

Social Security benefits from her mother, and those benefits would be considered when

assessing whether her brother could financially support her.

       Garrett testified she visits with her child every Friday; she missed one visit because

she was incarcerated for failing to appear on a shoplifting charge; she was not able to

consistently participate in services because of transportation issues; she did not realize DHS

would provide transportation; and she did not want to start services if she could not be

consistent and did want to rely on other people two and three times a week. She explained

she refused to take drug screens for DHS because she lost power in every part of her life

and the one thing she could grasp onto was her resentment of DHS for doing this; it was

not until she realized her child could be taken away forever that she realized what she was

doing was wrong; she realizes it was her fault the child was taken into care, not DHS’s; she

has accepted responsibility, and it has helped her in counseling; she was more than willing

to move out of her house so that her twenty-one-year-old son could have her daughter

with him; and if things go well, and she is able to move back in, her son could be her

support system. She stated her father was helping her son get a truck; she has family support;

she speaks with her dad every day; and her sister originally took the child but brought her

back when she got mad at Garrett because Garrett told her she was “going to beat her ass if

she didn’t quit acting the way she was.” She said she got rides from DHS employees during

the day, but did not realize they would assist her after hours until she learned of that service

                                               7
                                 Cite as 2016 Ark. App. 401

at a staffing. She said she provides for herself financially from her disability and by selling

items on eBay; she might have joked about getting money another way, but she was being

sarcastic. She acknowledged she had violated the court’s order by refusing to submit to drug

screens for DHS. She also acknowledged her son was taken from her care as a child; her

mother had guardianship of him; and she got him back. She stated if the court gave her

more time to get K.C. back, she would continue to cooperate; she feels she is making

progress with Craig Jones; she also liked working with Ken Arnold; she has not used drugs

for a while; and there was a time her services were delayed because Counseling Clinic

burned and all the records had been lost.

       During closing arguments, Garrett’s counsel commented, “Your honor we did bring

to your attention the Americans with Disabilities Act. While I agree that we did not make

a request for reasonable accommodations to the Department, I do not think the Department

can provide us with the one accommodation my client needs and that is a greater amount

of time to complete services than the ordinary individual would require. Only you can order

that accommodation and that is what we are requesting.”

       For her first point of appeal, Garrett contends the trial court erred in granting the

petition to terminate her parental rights. We disagree.

       The trial court terminated the rights of both parents. This appeal involves only the

mother. In pertinent part, the trial court found the following statutory grounds had been

proved: 1) that the child had been adjudicated dependent-neglected and continued out of

the parent’s custody for twelve months, and despite meaningful efforts by DHS to

rehabilitate and correct the conditions that caused removal, those conditions had not yet

                                              8
                                  Cite as 2016 Ark. App. 401

been remedied by the parent; 2) that the child had lived outside the parent’s home for a

period of twelve months, and the parent willfully failed to provide significant material

support in accordance with the parent’s means; and 3) that other factors and issues arose

subsequent to the filing of the original petition for dependency-neglect that demonstrate

that placement of the juvenile in the custody of the parent was contrary to the juvenile’s

health, safety, and welfare and that, despite the offer of appropriate family services, the parent

had manifested the incapacity and indifference to remedy the subsequent issues or factors or

rehabilitate the parent’s circumstances that prevented placement of the juvenile in the

parent’s custody. In addition, the trial court found that termination was in the child’s best

interest, considering the likelihood the juvenile would be adopted and the potential harm

to the health and safety of the juvenile caused by returning her to the parent’s custody.

       Our review of cases involving the termination of parental rights is de novo. Harbin

v. Arkansas Dep’t of Human Servs., 2014 Ark. App. 715, 451 S.W.3d 231. A trial court’s

termination of parental rights must be based on factual findings proven by clear and

convincing evidence. Basham v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 232, 490

S.W.3d 330. We will not reverse a trial court’s ruling as to termination unless it is clearly

erroneous. Id. In order to terminate parental rights under Arkansas law, a trial court must

find that at least one statutory ground for termination has been established and that

termination would be in the child’s best interest. Id. In determining the best interest of the

child, the court must take into consideration the likelihood of adoption and the potential

harm to the health and safety of the child that would be caused by return to custody of the

parent. Id.; Ark. Code Ann. § 9-27-341(b)(3)(A) (Repl. 2015). Credibility determinations

                                                9
                                 Cite as 2016 Ark. App. 401

are left to the fact-finder. Harbin, supra. Only one statutory ground is necessary to terminate

parental rights. Vail v. Arkansas Dep’t of Human Servs., 2016 Ark. App. 150, 486 S.W.3d

229.

       Here, the trial court found as one statutory ground that K.C. had been adjudicated

dependent-neglected and continued out of Garrett’s custody for twelve months, and despite

meaningful efforts by DHS to rehabilitate and correct the conditions that caused removal,

those conditions had not yet been remedied by the parent. Another ground the trial court

found was that other factors and issues arose subsequent to the filing of the original petition

for dependency-neglect that demonstrated placement of the juvenile in the custody of the

parent was contrary to the juvenile’s health, safety, and welfare and that, despite the offer of

appropriate family services, the parent had manifested the incapacity and indifference to

remedy the subsequent issues or factors or rehabilitate the parent’s circumstances that

prevented placement of the juvenile in the parent’s custody.

       We are not left with a definite and firm conviction the trial court made a mistake

with respect to either ground. As previously mentioned, proof of only one ground is

sufficient to terminate, making it unnecessary to discuss the remaining ground found by the

trial court involving lack of material support. As noted by the trial court in its order, K.C.

was removed from Garrett on July 25, 2014; Garrett tested positive in her first court-ordered

drug screen, and then refused to participate in the remaining DHS drug screens ordered by

the court; she did not participate in DHS drug screening until October 2015, which even

though it was negative, was performed after the petition to terminate had been filed; drug

screens that are refused are deemed to be positive; Garrett’s therapist, Craig Jones, testified

                                              10
                                 Cite as 2016 Ark. App. 401

he could not recommend increased supervised visitation until he had seen months of

progress; and Dr. DeYoub opined that Garrett’s treatment needed to continue for a

minimum of six months and as long as a year to prove she was stable, compliant with mental-

health treatment, and not relapsing into substance abuse. The court found it unreasonable

to have the child wait another six months to a year to see if Garrett was able to maintain

her sobriety and her mental health. The trial court further found that at the time the child

was removed, a hair-follicle test was positive for methamphetamine; that Garrett also tested

positive for methamphetamine; that Garrett had refused the random DHS drug testing; that

she only began outpatient drug treatment after the termination petition had been filed; that

during the period from January 2015 to mid-July 2015, she participated in no drug treatment

or NA/AA meetings, and only recently began complying with the medication-management

regimen outlined by her psychiatrist; that K.C.’s behavioral issues were related to the neglect

she suffered from the mother; that K.C.’s behavior had improved dramatically with

appropriate behavior modification and stability received in foster care; and that no family-

therapy sessions were undertaken because it would be counterproductive to do so when

Garrett was not participating in the case plan and the case was about to fall apart, as explained

by Mr. Barger. The trial court determined that Garrett’s lack of participation in services and

consistent treatment indicated her incapacity or indifference to remedying the factors that

prevented K.C.’s placement with her.

       With respect to the trial court’s finding that it was in the child’s best interest to

terminate Garrett’s rights, the trial court noted Cathleen Armstrong testified 162 families

were interested in adopting a child with similar characteristics, and Armstrong anticipated

                                               11
                                 Cite as 2016 Ark. App. 401

being highly successful in finding a match between the child and an adoptive family. The

trial court further relied upon the testimony of Descoteaux and Dr. DeYoub in

demonstrating that the child would be at risk of potential harm if she were returned to

Garrett. Again, we are not left with the conviction that the trial court made a mistake.

       The intent of our termination statute is to provide permanency in a minor child’s life

in circumstances where returning the child to the family home is contrary to the child’s

health, safety, or welfare, and where the evidence demonstrates that the return cannot be

accomplished in a reasonable period of time as viewed from the child’s perspective. Harbin,

supra; Ark. Code Ann. § 9-27-341(a)(3). The child’s need for permanency and stability may

override the parent’s request for additional time to improve the parent’s circumstances. Id.

The issue is whether the parent has become a stable, safe parent able to care for the child.

Id. The court may consider the parent’s past behavior, and even full compliance with the

case plan is not determinative. Id.

       Garrett appears to have finally realized the seriousness of the case when the goal was

changed to termination—July 2015. While from that point forward she seems to have

applied herself to remedying her substance abuse and mental-health issues, her eleventh hour

efforts were simply too late. See, e.g., Villanueva v. Arkansas Dep’t of Human Servs., 2014 Ark.

App. 401, 439 S.W.3d 65. There was testimony from Dr. DeYoub that another six months

to a year would be necessary to make sure she was no longer drug-dependent, could stay

out of mental hospitals, and could avoid abusive relationships. The trial court was justified

in balancing all of those factors against the child’s need for stability and permanence. Garrett

has not convinced us that the trial court clearly erred in terminating her parental rights.

                                              12
                                Cite as 2016 Ark. App. 401

       For her remaining point of appeal, Garrett contends the trial court failed to provide

an adequate accommodation under the Americans with Disabilities Act when it refused to

allow her more time to complete services. We do not address the issue because it was not

preserved for our review. As demonstrated earlier in this opinion, Garrett never properly

developed this ADA argument before the trial court nor did she receive a ruling on the

issue. She is therefore prevented from raising it on appeal. Woodall v. State, 2011 Ark. 22,

376 S.W.3d 408.

       Affirmed.

       HARRISON and VAUGHT, JJ., agree.

       Wallace, Martin, Duke and Russell, PLLC, by: Valerie L. Goudie, for appellant.

       Jerald A. Sharum, Office of Chief Counsel, for appellee.

       Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

                                            13