In re A.M. (Slip Opinion) , 2020 Ohio 5102 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re A.M., Slip Opinion No. 2020-Ohio-5102.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-5102
IN RE A.M.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re A.M., Slip Opinion No. 2020-Ohio-5102.]
R.C. 2151.414(D)(1) does not require a juvenile court to make specific findings
regarding each best-interest factor listed in R.C. 2151.414(D)(1) or to
include in its decision or judgment entry a written discussion of each of
those factors.
(No. 2019-0923—Submitted June 2, 2020—Decided November 3, 2020.)
APPEAL from the Court of Appeals for Hamilton County, No. C-190027,
2019-Ohio-2028.
_______________________
FRENCH, J.
{¶ 1} This appeal asks us to consider the contours of the statutory
requirement that juvenile courts consider the factors set out in R.C. 2151.414(D)(1)
for determining a child’s best interest before granting a motion filed by a public
children-services agency or private child-placing agency for permanent custody of
that child.
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{¶ 2} The First District Court of Appeals affirmed the judgment of the
Hamilton County Court of Common Pleas, Juvenile Division, which granted
permanent custody of A.M. to appellee, the Hamilton County Department of Job
and Family Services. Appellant—A.M.’s mother, Brianna D.—contends that the
juvenile court did not comply with the requirement in R.C. 2151.414(D)(1) that it
consider all the enumerated factors for determining whether an award of permanent
custody to the department was in A.M.’s best interest.
{¶ 3} Because we conclude that the juvenile court complied with R.C.
2151.414(D)(1), we affirm the First District’s judgment.
Facts and procedural background
{¶ 4} Brianna was 16 years old and living in a foster home, in the
department’s custody, when A.M. was born, in November 2015.
{¶ 5} The department first sought temporary custody of A.M. in December
2016, shortly after A.M.’s first birthday, because Brianna was having trouble
attending school, was having outbursts in her foster home, and had tested positive
for marijuana. Based on stipulations between Brianna and the department, the
magistrate modified the department’s motion to a motion for interim protective
orders, which the magistrate granted.
{¶ 6} The magistrate adjudicated A.M. dependent on February 10, 2017,
and granted the department protective supervision of A.M. The magistrate
incorporated into her decision a report from A.M.’s guardian ad litem that indicated
that A.M. appeared to be emotionally attached to Brianna. But the magistrate also
found clear and convincing evidence of Brianna’s “out of control behaviors,” which
had led to police involvement, property damage, and Brianna’s suspension and
expulsion from school. She also found that in October 2016, Brianna left her foster
home with A.M. without permission and met with A.M.’s father, who allegedly
assaulted Brianna.
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{¶ 7} Under the department’s protective supervision, A.M. remained with
Brianna in her foster home. The magistrate ordered Brianna to undergo mental-
health, chemical-dependency, and domestic-violence assessments and to follow all
resulting recommendations. She further ordered Brianna to attend school, to not be
tardy or disruptive in school or in her foster home, to submit to random toxicology
screens, and to successfully complete parenting classes. While many of these
orders were directed toward both of A.M.’s parents, we are concerned here only
with Brianna.
{¶ 8} In June 2017, the department filed a complaint, affidavit, and motion
for interim temporary custody of A.M. and for an order authorizing removal of
A.M. from the foster home. The department alleged that since February 2017,
Brianna had repeatedly failed to attend school or had been turned away from school
due to tardiness, had occasionally failed to make her whereabouts known to her
foster family while leaving A.M. in the foster mother’s care, and had continued to
test positive for marijuana. The agency also alleged one instance in which Brianna
had become upset and stated that she wanted to sign away her parental rights to
A.M. Based on stipulations by the parties, the magistrate granted the department’s
motion for interim temporary custody on June 15, concluding that it would be
contrary to A.M.’s best interest and welfare to remain in the foster home with
Brianna.
{¶ 9} In a decision issued September 20, 2017, the magistrate terminated
the June 2017 interim orders and granted the department temporary custody of
A.M. The magistrate’s findings repeat, nearly verbatim, the allegations from the
department’s June 2017 complaint. The magistrate again ordered Brianna to
participate in the services offered under her case plan. In addition to repeating its
previous orders regarding mental-health, chemical-dependency, and domestic-
violence assessments, parenting classes, and toxicology screens, the magistrate
ordered Brianna to obtain and maintain sobriety, to not test positive for opiates,
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alcohol, or other illegal or nonprescribed substances, and to complete high school
or obtain a GED. The magistrate ordered Brianna to obtain and maintain a stable
income and housing if she were to become emancipated.
{¶ 10} Brianna was emancipated in October 2017, shortly after her 18th
birthday, upon her request. As a result of her emancipation, Brianna’s medical
insurance lapsed. At that point, she was unable to reengage with Ohio Mentor,
which had previously supervised her visitations with A.M., or to continue her
therapy sessions.
{¶ 11} On March 22, 2018, the department filed a motion to modify its
temporary custody of A.M. to permanent custody. The department alleged that
Brianna had not engaged in mental-health services since November 2017, had not
participated in a substance-abuse program, and had admitted to continued
marijuana use. A.M.’s guardian ad litem supported the department’s motion and
stated that a grant of permanent custody was in A.M’s best interest due to Brianna’s
lack of participation in case-plan services, continued use of marijuana, inconsistent
visitation with A.M., and general lack of progress with respect to the case plan.
{¶ 12} The magistrate conducted a two-day evidentiary hearing in
September 2018. Chris Graham, the caseworker assigned to Brianna and A.M.,
testified to the “really good relationship,” the bond, and the love between Brianna
and A.M. But she also testified that Brianna had not completed any of her court-
ordered case-plan services. Brianna admitted that despite consistent court orders,
she had not fully completed any of her case-plan services. She testified, however,
that she had matured and that given more time, she would follow through with those
services.
{¶ 13} The magistrate issued a decision on September 17, 2018, granting
the department’s motion for permanent custody. The magistrate found by clear and
convincing evidence that A.M. should not, and could not within a reasonable time,
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be placed with either parent and that an award of permanent custody to the
department was in A.M.’s best interest.
{¶ 14} Brianna filed a timely objection, in which she stated only that the
magistrate’s decision was against the weight of the evidence and contrary to law.
Although Brianna’s filing noted that she reserved the right to amend her objection
upon receipt of a hearing transcript, she did not do so. The juvenile court heard
oral argument on Brianna’s objection, during which Brianna’s counsel challenged
only the magistrate’s finding under R.C. 2151.414(B)(1)(a) that A.M. could not be
placed with Brianna within a reasonable time. Brianna’s counsel did state, “[T]he
child is very bonded to [her] mother,” and she urged the court to give Brianna “an
opportunity to try to do what she needs to do to reunify with her child.”
{¶ 15} The juvenile court overruled Brianna’s objection and adopted the
magistrate’s decision. The judgment entry states that the court reviewed the
transcript, heard oral arguments, and conducted an independent review of the
objected-to matters and that the court found by clear and convincing evidence that
the magistrate had properly granted the department’s motion for permanent
custody. The court independently found that “considering all relevant factors,
including but not limited to those found in R.C. 2151.414(D), clear and convincing
evidence established that it [was] in [A.M.’s] best interest to be placed in the
permanent custody of [the department].”
{¶ 16} On appeal to the First District, Brianna shifted her argument. There,
with new counsel, she argued that the juvenile court’s determination that a grant of
permanent custody was in A.M.’s best interest was not supported by sufficient
evidence and was against the weight of the evidence. The court of appeals
disagreed and affirmed the juvenile court’s judgment in a split decision. It
subsequently denied Brianna’s requests for en banc consideration and to certify a
conflict.
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{¶ 17} We initially denied Brianna’s discretionary appeal, 157 Ohio St. 3d
1406, 2019-Ohio-3731, 131 N.E.3d 77, but on reconsideration, we accepted
jurisdiction to address a single proposition of law concerning a juvenile court’s
consideration of the factors listed in R.C. 2151.414(D)(1) for determining the best
interest of a child, 157 Ohio St. 3d 1520, 2019-Ohio-5289, 136 N.E.3d 526.
Analysis
The statutory framework
{¶ 18} R.C. 2151.414 sets out specific findings a juvenile court must make
before granting an agency’s motion for permanent custody of a child. In re C.F.,
113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 22. As relevant here, the
court must find by clear and convincing evidence (1) that one or more of the
conditions in R.C. 2151.414(B)(1)(a) through (e) applies and (2) that a grant of
permanent custody is in the child’s best interest. R.C. 2151.414(B)(1). In this
appeal, Brianna has not challenged the juvenile court’s determination that under
R.C. 2151.414(B)(1)(a), A.M. should not, and could not within a reasonable time,
be placed with either parent. We are therefore concerned only with the juvenile
court’s determination that a grant of permanent custody to the department was in
A.M.’s best interest.
{¶ 19} An agency that seeks permanent custody of a child bears the burden
of proving by clear and convincing evidence that the grant of permanent custody is
in the child’s best interest. In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21
N.E.3d 308, ¶ 26. R.C. 2151.414(D)(1) sets out a nonexhaustive list of factors the
court must consider:
In determining the best interest of a child * * *, the court
shall consider all relevant factors, including, but not limited to, the
following:
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(a) The interaction and interrelationship of the child with
the child’s parents, siblings, relatives, foster caregivers and out-of-
home providers, and any other person who may significantly affect
the child;
(b) The wishes of the child, as expressed directly by the
child or through the child’s guardian ad litem, with due regard for
the maturity of the child;
(c) The custodial history of the child * * *;
(d) The child’s need for a legally secure permanent
placement and whether that type of placement can be achieved
without a grant of permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of
this section apply in relation to the parents and child.
The factors in R.C. 2151.414(E)(7) through (11), which are referred to in R.C.
2151.414(D)(1)(e), involve a parent’s having been convicted of or pleaded guilty
to specific criminal offenses against the child, the child’s sibling or another child
who lived in the parent’s household; a parent’s withholding medical treatment or
food from the child; a parent’s repeatedly placing the child at substantial risk of
harm because of alcohol or drug abuse; a parent’s abandoning the child; and a
parent’s having had parental rights as to the child’s sibling involuntarily terminated.
{¶ 20} The parties here essentially dispute what a juvenile court must do to
comply with, or to demonstrate its compliance with, R.C. 2151.414(D)(1).
The parties’ positions
{¶ 21} Brianna asks this court to hold that a juvenile court must show how
it considered each of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e)
by fully analyzing and discussing each factor. She asks us to determine that the
statute requires juvenile courts to provide a written discussion of the statutory best-
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interest factors that reflects what evidence the court relied on in its consideration of
those factors. Brianna’s position is consistent with the dissenting opinion from the
First District, which found error based, in part, on the lack of express factual
findings in the magistrate’s decision or juvenile court’s judgment entry relating
directly to some of the statutory factors. See 2019-Ohio-2028, ¶ 47 (Bergeron, J.,
dissenting).
{¶ 22} The department, on the other hand, argues that a juvenile court need
only consider the statutory factors and that it need not specifically discuss each
factor to comply with R.C. 2151.414(D)(1). A.M.’s attorney/guardian ad litem
similarly argues that the statutory requirement to consider the best-interest factors
does not equate to a statutory requirement to discuss them. The department and
A.M.’s attorney/guardian ad litem agree, however, that the record must demonstrate
that the trial court did, in fact, consider those factors.
R.C. 2151.414(D)(1) does not require written discussion or factual findings
with respect to each best-interest factor
{¶ 23} As we do with any issue of statutory interpretation, we begin by
examining the language of the statute. See In re T.R., 120 Ohio St. 3d 136, 2008-
Ohio-5219, 896 N.E.2d 1003, ¶ 8. We must give effect to the plain meaning of the
words the General Assembly has used, and we may not modify an unambiguous
statute by adding or deleting words. State v. Steele, 138 Ohio St. 3d 1, 2013-Ohio-
2470, 3 N.E.3d 135, ¶ 17. If the statutory language is clear and unambiguous, we
must apply it as written. In re T.R. at ¶ 8. Here, the unambiguous statutory language
in R.C. 2151.414(D)(1) resolves the proposition before us.
{¶ 24} As we mentioned above, before granting an agency’s motion for
permanent custody under R.C. 2151.414(B)(1), a juvenile court must make two
findings, one of which is that a grant of permanent custody is in the best interest of
the child. And R.C. 2151.414(D)(1) requires that a juvenile court, in determining
whether a grant of permanent custody is in the best interest of the child, “consider”
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all relevant factors, including the five factors listed in R.C. 2151.414(D)(1)(a)
through (e). The parties are essentially arguing about the meaning of the word
“consider.”
{¶ 25} R.C. Chapter 2151 does not define “consider,” so we accord that
term its common, everyday meaning. See Am. Fiber Sys., Inc. v. Levin, 125 Ohio
St.3d 374, 2010-Ohio-1468, 928 N.E.2d 695, ¶ 24. We have previously stated that
“consider” means “ ‘to reflect on: think about with a degree of care or caution.’ ”
State v. Thompson, 92 Ohio St. 3d 584, 588, 752 N.E.2d 276 (2001), fn. 1, quoting
Webster’s Third New International Dictionary (1986) 483. This common,
everyday meaning of “consider” does not encompass a requirement of a written
discussion or factual findings.
{¶ 26} In other contexts, this court has held that a requirement to consider
enumerated factors does not constitute a requirement that a court explicitly address
those factors or that it make specific factual findings. See, e.g., State v. Douglas,
20 Ohio St. 3d 34, 485 N.E.2d 711 (1985). Douglas addressed the interplay between
former R.C. 2151.26(A)(3) and former Juv.R. 30(E). At the time, R.C.
2151.26(A)(3) required a juvenile court to determine that a juvenile offender was
not amenable to care or rehabilitation in the juvenile system before binding the
juvenile over for prosecution in adult court and Juv.R. 30(E) required the court to
consider five factors in making that determination. See Douglas at 35-36. We held
that neither R.C. 2151.26(A)(3) nor Juv.R. 30(E) required the juvenile court to
make written findings: “The rule simply requires the court to consider these factors
in making its determination on the amenability issue.” (Emphasis sic.) Douglas at
36. We stated, “[A]s long as sufficient, credible evidence pertaining to each factor
existed in the record before the court, the bind-over order should not be reversed in
the absence of an abuse of discretion.” Id.
{¶ 27} We employed similar reasoning with respect to former R.C.
2950.09(B)(2), which required courts to consider ten specific factors, as well as all
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other relevant factors, in determining whether to classify a defendant as a sexual
predator. See State v. Cook, 83 Ohio St. 3d 404, 700 N.E.2d 570 (1998). In Cook,
we held that the statute did “not require the court to list the criteria, but only to
‘consider all relevant factors, including’ the criteria in R.C. 2950.09(B)(2) in
making [its] findings.” Id. at 426.
{¶ 28} We have not previously addressed this question with respect to R.C.
2151.414(D)(1), and the caselaw from the courts of appeals regarding that statute
is inconsistent. In the case before us, the majority of the First District panel relied
on that court’s prior decision that had “ ‘strongly encourage[d]’ ” juvenile courts to
discuss each of the best-interest factors under R.C. 2151.414(D)(1) but that had
refused to find error based on a court’s failure to do so when the record otherwise
indicated that the court considered all the required factors. 2019-Ohio-2028, at
¶ 26, quoting In re K.T. 1, 2018-Ohio-4312, 121 N.E.3d 847, ¶ 46, (1st Dist.). See
also In re W. Children, 1st Dist. Hamilton No. C-180620, 2019-Ohio-690, ¶ 51
(record must indicate that court considered all best-interest factors, but court need
not “specifically discuss” each factor).
{¶ 29} Most other Ohio appellate districts have likewise held that R.C.
2151.414(D)(1) does not require a juvenile court to list or discuss the statutory
factors in a best-interest determination. See In re D.F., 7th Dist. Noble No. 16 NO
0439, 2017-Ohio-2711, ¶ 38; In re A.H., 9th Dist. Lorain No. 13CA10454, 2014-
Ohio-552, ¶ 11; In re M.R., 3d Dist. Defiance No. 4-12-18, 2013-Ohio-1302, ¶ 78;
In re K.S., 6th Dist. Wood No. WD-09-008, 2009-Ohio-3622, ¶ 21; In re Allbery,
4th Dist. Hocking No. 05CA12, 2005-Ohio-6529, ¶ 13; In re I.M., 8th Dist.
Cuyahoga Nos. 82669 and 82695, 2003-Ohio-7069, ¶ 27; In re Fouty, 5th Dist.
Guernsey No. 00CA36, 2001 WL 227672, *3 (Mar. 7, 2001).
{¶ 30} Other appellate districts, however, have held the opposite. The
Eleventh District Court of Appeals, for example, has held that a “trial court must
discuss, in its judgment entry, each of the R.C. 2151.414(D) factors when reaching
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a determination concerning the best interest of the child” and that “the failure to do
so constitutes prejudicial error.” (Emphasis sic.) In re B.D., 11th Dist. Lake Nos.
2009-L-003 and 2009-L-007, 2009-Ohio-2299, ¶ 104, citing In re Bentley, 11th
Dist. Ashtabula No. 2004-A-0075, 2005-Ohio-1257. It stated, “The factors must
* * * be given due consideration and carefully discussed in relation to the evidence
submitted” to enable full and meaningful appellate review. Id. at ¶ 114. And the
Tenth District Court of Appeals, despite its recognition that “a trial court is not
required to specifically enumerate each factor under R.C. 2151.414(D) in its
decision,” In re Heyman, 10th Dist. Franklin No. 96APF02-194, 1996 WL 465238,
*2 (Aug. 13, 1996), has reversed and remanded a permanent-custody judgment for
the juvenile court to “issue findings addressing the factors under R.C.
2151.414(D),” In re Strong, 10th Dist. Franklin Nos. 01AP-1418 and 01AP-1419,
2002-Ohio-2247, ¶ 49. The Twelfth District also requires juvenile courts to include
findings related to the R.C. 2151.414(D) factors in their decisions. In re A.F., 12th
Dist. Brown No. CA2006-09-012, 2007-Ohio-1646, ¶ 30. The approach taken by
the Tenth, Eleventh, and Twelfth Districts, however, improperly extends R.C.
2151.414(D)(1) beyond its plain meaning.
{¶ 31} Based on the plain and unambiguous statutory language, and
consistently with our treatment of the word “consider” in other contexts, we hold
that R.C. 2151.414(D)(1) does not require a juvenile court to expressly discuss each
of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is
all the statute requires. Although a reviewing court must be able to discern from
the magistrate’s or juvenile court’s decision and the court’s judgment entry that the
court satisfied the statutory requirement that it consider the enumerated factors, we
may not graft onto the statute a requirement that the court include in its decision a
written discussion of or express findings regarding each of the best-interest factors.
{¶ 32} That is not to say, nor do we suggest, that juvenile courts should not
address the statutory best-interest factors. Several Ohio appellate districts already
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encourage the juvenile courts in their districts to do so. See In re K.T. 1, 2018-
Ohio-4312, 121 N.E.3d 847 (1st Dist.), at ¶ 46; In re D.F., 7th Dist. Noble No. 16
NO 0439, 2017-Ohio-2711, at ¶ 38; In re M.R., 3d Dist. Defiance No. 4-12-18,
2013-Ohio-1302, at ¶ 77, citing In re D.H., 3d Dist. Marion No. 9-06-57, 2007-
Ohio-1762, ¶ 20. We likewise strongly encourage juvenile courts to do so. As we
have done when addressing other statutes that require a court to consider specific
factors, we emphasize that the best practice is for the juvenile court to specifically
address each factor. See Douglas, 20 Ohio St. 3d at 36, 485 N.E.2d 711; State v.
Eppinger, 91 Ohio St. 3d 158, 166, 743 N.E.2d 881 (2001) (suggesting that a model
sexual-offender-classification hearing should include an on-the-record discussion
of the statutory factors under former R.C. 2950.09). Discussion of the statutory
factors, we reasoned in Eppinger, aids appellate review and ensures that the
offender receives a fair and complete hearing. Id. at 167. Discussion of the
statutory best-interest factors in R.C. 2151.414(D)(1) would similarly facilitate
appellate review of permanent-custody judgments. See In re M.B., 9th Dist.
Summit No. 21760, 2004-Ohio-597, ¶ 11 (although a trial court may not be
statutorily required to provide detailed reasoning, an appellate court “needs
sufficient information to ‘review’ the trial court’s decision, else we are put in the
position of speculating as to the evidence supporting the trial court’s decision,
making our own factual findings, and even judging the credibility of the
witnesses”). A juvenile court’s including a discussion of the best-interest factors
in its decision granting permanent custody of a child to an agency is also likely to
increase public confidence in the judicial process in this most important area of
parental rights.
The magistrate’s decision and juvenile court’s judgment entry
indicate consideration of the statutory best-interest factors
{¶ 33} Having determined that R.C. 2151.414(D)(1) does not require a
juvenile court to make specific findings regarding each best-interest factor listed in
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R.C. 2151.414(D)(1) or to include in its decision or judgment entry a written
discussion of each of those factors, we are left with the question whether the
magistrate’s decision and the juvenile court’s judgment entry in this case establish
that the juvenile court complied with its duty to consider the statutory best-interest
factors. We conclude that the magistrate’s decision and the juvenile court’s
judgment entry demonstrate that the court complied with R.C. 2151.414(D)(1).
{¶ 34} We first look to the magistrate’s decision. The magistrate expressly
concluded that it was in A.M.’s best interest to award permanent custody to the
department. She also individually cited each of the factors set out in R.C.
2151.414(D)(1)(a) through (e), albeit in generic language not tailored to the facts
of this case.
{¶ 35} The magistrate’s consideration of certain of the factors in R.C.
2151.414(D)(1) is obvious. Regarding the wishes of the child, as expressed either
by the child or by the child’s guardian ad litem, under R.C. 2151.414(D)(1)(b), the
magistrate noted the guardian ad litem’s determination that an award of permanent
custody, which would allow A.M. to be adopted, was in A.M.’s best interest. The
magistrate also stated that she had consulted A.M. in an age-appropriate manner
regarding the request for permanent custody. Regarding A.M.’s custodial history,
under R.C. 2151.414(D)(1)(c), the magistrate found that A.M. had been in the
temporary custody of the department since June 2017 and had previously been
under the agency’s protective supervision beginning in December 2016. And with
respect to R.C. 2151.414(D)(1)(d), which requires the court to consider the child’s
need for a legally secure placement and whether that type of placement can be
achieved without a grant of permanent custody, the magistrate reiterated the length
of time A.M. had been under the department’s protective supervision or in its
temporary custody, having already noted the guardian ad litem’s determination that
permanent custody was in A.M.’s best interest because it would allow her to be
adopted, thus creating a legally secure placement. Additional findings regarding
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Brianna’s failure to follow through with her mental-health treatment, continued use
of marijuana, noncompliance with toxicology screens, failure to complete parenting
classes, failure to complete high school, and failure to follow through with
domestic-violence-prevention services all support a finding that establishing a
legally secure placement for A.M. required a grant of permanent custody to the
department.
{¶ 36} The magistrate’s consideration of the remaining R.C.
2151.414(D)(1) factors is less obvious. The magistrate noted the requirement in
R.C. 2151.414(D)(1)(e) that she consider whether R.C. 2151.414(E)(7) through
(11) apply, but she made no specific finding in that regard. Instead, she stated,
“Mother has a history of sporadic visitation. Mother complained that her 8:45 AM
visits between April and June were too early for her. Mother missed visits and it
ha[d] an adverse effect on the child.” Those statements may be true—and they are
supported by the record—but they do not relate to the factors listed in R.C.
2151.414(E)(7) through (11). Nevertheless, the record here contains no evidence
that any of the factors in R.C. 2151.414(E)(7) through (11) apply, and no party has
argued otherwise. See In re K.H., 9th Dist. Summit No. 27952, 2016-Ohio-1330,
¶ 14 (“Because no evidence was presented to the trial court that any of the factors
set forth in Sections 2151.414(E)(7) through (11) applied, * * * the trial court was
not required to discuss or make findings under” R.C. 2151.414(D)(1)(e)). Given
the magistrate’s acknowledgment of R.C. 2151.414(D)(1)(e) as a consideration in
her best-interest analysis and the inapplicability of R.C. 2151.414(E)(7) through
(11), we conclude that neither the absence of a factual finding that R.C.
2151.414(E)(7) through (11) are inapplicable nor the magistrate’s statement of
findings unrelated to (E)(7) through (11) demonstrates prejudicial error.
{¶ 37} That leaves R.C. 2151.414(D)(1)(a), which is where Brianna
primarily focuses her argument. She argues that the magistrate’s decision is
insufficient because it does not include analysis, discussion or a conclusion
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regarding her interaction and interrelationship with A.M. Brianna points
particularly to the absence of any discussion of trial testimony given by the
caseworker and A.M.’s guardian ad litem regarding the bond between A.M. and
Brianna and Brianna’s recent visitation history. The record undoubtedly contains
testimony of a loving relationship between Brianna and A.M. But the absence of
discussion of that evidence by the magistrate does not mean that the magistrate did
not take it into account when considering R.C. 2151.414(D)(1)(a).
{¶ 38} The magistrate specifically indicated that she considered R.C.
2151.414(D)(1)(a) by concluding that the interaction and interrelationship between
A.M. and Brianna “cause[d]” A.M.’s best interest to be served by an award of
permanent custody. But looking beyond that conclusory statement, findings
elsewhere in the decision demonstrate that the magistrate considered evidence
regarding the interaction and interrelationship between A.M. and Brianna. The
magistrate noted the instance when Brianna became upset and stated that she
wanted to sign away her parental rights to A.M. She also noted Brianna’s history
of sporadic visitation with A.M. and the adverse effects that Brianna’s missed visits
had on A.M. Finally, the magistrate found that Brianna demonstrated a lack of
commitment toward A.M. Although they are scattered throughout her decision,
those findings nevertheless demonstrate that the magistrate appropriately
considered the interrelation between Brianna and A.M., as R.C. 2151.414(D)(1)(a)
requires, in determining the best interest of the child.
{¶ 39} We now turn to the juvenile court’s judgment entry overruling
Brianna’s objection and adopting the magistrate’s decision. Pursuant to Juv.R.
40(D)(4)(d), if timely objections to a magistrate’s decision are filed, the juvenile
court must “undertake an independent review as to the objected matters to ascertain
that the magistrate has properly determined the factual issues and appropriately
applied the law.” The fact that a court does not cite any specific portion of a
transcript or record does not demonstrate that the court failed to conduct an
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independent review of the matters objected to. Giovanni v. Bailey, 9th Dist.
Summit Nos. 28631 and 28676, 2018-Ohio-369, ¶ 21 (applying the analogous
Civ.R. 53(D)(4)(d)).
{¶ 40} Here, the juvenile court noted its obligation to independently review
the matters objected to. The court stated that it had independently reviewed the
record, including the trial transcripts, heard oral argument on Brianna’s objection,
and considered all relevant factors, including those R.C. 2151.414(D)(1) requires,
in its determination of A.M.’s best interest. Although the juvenile court did not
restate factual findings from the magistrate’s decision, it did hold that the magistrate
properly determined the factual issues after viewing the witnesses’ demeanors and
judging their credibility, and it adopted the magistrate’s decision as its own. And
the court independently held, “[C]onsidering all relevant factors, including but not
limited to those found in R.C. 2151.414(D), clear and convincing evidence
established that it is in the child’s best interest to be placed in the permanent custody
of [the department].” When the record indicates that a juvenile court, in response
to timely filed objections, has undertaken an independent review of the evidence,
has acknowledged the applicable statutory framework, has adopted the magistrate’s
findings of fact, and has made the required conclusions upon clear and convincing
evidence, we can only conclude that the court has satisfied its obligation under
Juv.R. 40(D)(4)(d).
{¶ 41} In short, the magistrate’s decision and juvenile court’s judgment
entry demonstrate that the court satisfied its statutory duty to consider the best-
interest factors set out in R.C. 2151.414(D)(1)(a) through (e).
Conclusion
{¶ 42} R.C. 2151.414(D)(1) requires a juvenile court to consider all
relevant factors, including but not limited to the five factors set out in R.C.
2151.414(D)(1)(a) through (e), in determining the best interest of a child in a
permanent-custody case. In applying that statute, it is preferable for a juvenile court
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to provide some discussion or analysis of the best-interest factors to aid in appellate
review and to increase confidence in its decision, but the statute itself requires only
that the court consider those factors, and we may not impose additional
requirements beyond the statutory language. Because the record here demonstrates
that the magistrate and the juvenile court did consider the statutory factors, we
affirm the judgment of the First District Court of Appeals.
Judgment affirmed.
KENNEDY, FISCHER, DEWINE, and STEWART, JJ., concur.
DONNELLY, J., dissents, with an opinion joined by O’CONNOR, C.J.
_________________
DONNELLY, J., dissenting.
{¶ 43} The majority may be correct in holding that a juvenile court’s
statutory obligation to “consider” the best-interest factors of R.C. 2151.414(D)(1)
does not include a requirement that the court explain its factual findings and
reasoning for every individual factor contained in the statute. But the majority’s
holding does not solve the problem presented in this appeal; it only rejects a
proposed solution. The problem remains: when a trial court does not provide
adequate information or analysis to support its decision, an appellate court is put in
the position of reverse-engineering the decision in order to review the trial court’s
presumed reasoning. Such reverse-engineering is problematic because it does not
necessarily comply with the applicable standard of appellate review, it is not
necessarily accurate, and as Judge Bergeron aptly noted in his opinion dissenting
from the judgment of the First District Court of Appeals, “it places the appealing
party at a substantial disadvantage because he or she lacks guidance on what to
address on appeal, often rendering the appeal a hollow exercise,” 2019-Ohio-2028,
¶ 41 (Bergeron, J., dissenting). Because the magistrate and juvenile court did not
provide an adequate basis for meaningful appellate review in this case, I would
reverse the judgment of the First District Court of Appeals.
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{¶ 44} As the majority has thoroughly explained, the record contains many
details regarding A.M.’s history and the relationship between A.M. and her mother,
appellant, Brianna D., for the magistrate to consider and carefully weigh in
determining whether granting permanent custody of A.M. to appellee, the Hamilton
County Department of Job and Family Services, would be in A.M.’s best interest.
But you would not know that from reading the magistrate’s decision.
{¶ 45} In contrast to the majority’s generous description of the magistrate’s
decision, I would describe the decision as a patchwork quilt of language taken from
the September 20, 2017 adjudication-and-dispositional entry and from a generic
template for permanent-custody decisions. In some places, A.M.’s name is inserted
in the template in all capital letters, and in many places, the decision merely refers
to the “child/ren.” Some of the boilerplate language is completely irrelevant, some
of it is relevant but not accompanied by any case-specific information, and some of
it is accompanied by case-specific information that is not relevant to the boilerplate
language. For example, in the portion of the decision addressing the wishes of the
child pursuant to R.C. 2151.414(D)(1)(b), the magistrate stated the following:
Ohio revised code section 2151.414(D)(1)(b) considers the wishes
of the child/ren as expressed directly by the child/ren or through the
child/ren’s guardian ad litem, with due regard for the maturity of the
child/ren in determining whether a termination of parental rights is
in the child/ren’s best interest. O.R.C. 2151.414(D)(1)(b). The
Guardian ad Litem agrees that Permanent Custody is in the best
interest of the child so that the child may be adopted.
{¶ 46} One cannot reasonably read the foregoing language as a description
of the magistrate’s personal interaction with A.M. and assessment of A.M.’s
wishes. Even assuming that the final sentence is not boilerplate language from a
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template, repeating a guardian ad litem’s (“GAL’s”) best-interest recommendation
does not tell us anything about the personal wishes of A.M.; it reflects the
professional opinion of the GAL. In a custody proceeding, the determination by a
GAL of what is in the child’s best interest and what the child wants are two distinct
facts, and sometimes, the two are in direct opposition to one another. See In re
Baby Girl Baxter, 17 Ohio St. 3d 229, 232, 479 N.E.2d 257 (1985). The majority
opinion weaves in the observation that the magistrate at one point “stated that she
had consulted A.M. in an age-appropriate manner,” majority opinion at ¶ 35, but
the statement the majority is referring to does not indicate whether A.M. expressed
any wishes; at the end of the magistrate’s decision, after terminating the mother’s
parental rights and granting permanent custody to the agency, and after describing
the agency’s efforts to finalize permanent placement of A.M. with a new family,
the magistrate included what appears to be a boilerplate sentence—with A.M.’s
name inserted in all capital letters—that states: “The Court consulted [A.M.], in an
age-appropriate manner, regarding the proposed permanency plan.”
{¶ 47} My objective here is not to quibble over what the magistrate did or
did not state at every point in her decision but to point out how much effort the
majority of this court had to expend in extracting and assembling enough
information to justify upholding the magistrate’s decision. As another example, in
the portion of the decision purportedly addressing the relationship between Brianna
and A.M. pursuant to R.C. 2151.414(D)(1)(a), the magistrate stated the following:
The interaction and interrelationship of the child/ren with their
parent(s), sibling(s), relative(s), foster parent(s) and out-of-home
provider(s) causes the child/ren’s best interest to be served by the
termination of parental rights.
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Again, one cannot reasonably consider the foregoing boilerplate language to be
evidence of the magistrate’s individualized consideration of the relationship
between A.M. and her mother. But the majority portrays the sentence as the
magistrate’s “concluding that the interaction and interrelationship between A.M.
and Brianna ‘cause[d]’ A.M.’s best interest to be served by an award of permanent
custody.” Majority opinion at ¶ 38. The majority points to certain observations
about Brianna’s negative behaviors elsewhere in the magistrate’s decision, but how
are we to know that those negative behaviors are what led the magistrate to the
ever-so-personalized conclusion about the relationship between the “parent(s)” and
“child/ren?” We do not know whether the magistrate weighed these negative
factors against positive ones, such as the unquestionable loving bond between
Brianna and A.M., because such positive factors are nowhere to be found in the
magistrate’s decision. Did the magistrate ignore them altogether? Did she find that
they carried less weight because of a credibility problem? Or did the magistrate
carefully consider the positive factors and decide that they were outweighed by the
teenage mother’s failure to get her young, traumatized life together quickly
enough?
{¶ 48} It is entirely possible that the last of these conjectures is the correct
one and that the majority is right in assuming as much. Indeed, a majority of this
court and a majority of the First District Court of Appeals set forth many facts and
considerations that very well could have validly supported the magistrate’s decision
regarding A.M.’s best interest. But by doing so, the First District and this court
created a decision on the juvenile court’s behalf rather than reviewing the one that
was made.
{¶ 49} Even if the magistrate was not required to provide a thorough
explanation of the facts and analysis that applied to each separate best-interest
factor under R.C. 2151.414(D)(1), the magistrate needed to provide an adequate
basis for meaningful appellate arguments and meaningful appellate review. The
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magistrate did not do so in this case, leaving Brianna to punch at the air and leaving
the First District Court of Appeals to do “the work of the lower court[] * * *
(without the benefit of the ability to judge credibility),” 2019-Ohio-2028 at ¶ 41
(Bergeron, J., dissenting). Rather than guiding Ohio’s appellate courts away from
the problematic practice reflected in the First District’s analysis, the majority
reinforces the problem by repeating it.
{¶ 50} Accordingly, I dissent and would reverse the judgment of the First
District Court of Appeals.
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
Cynthia S. Daugherty, for appellant.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Nicholas C.
Varney, Assistant Prosecuting Attorney, for appellee.
Treleven and Klingensmith Law, L.L.C., and Celia Klug Weingartner,
attorney/guardian ad litem, for A.M.
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