In re I.B-C. , 2019 Ohio 1464 ( 2019 )

[Cite as In re I.B-C. , 2019-Ohio-1464.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF : Case Nos. 18CA3647
18CA3648
I.B-C. : 18CA3649
J.B-K. 18CA3650
N.M.K. : 18CA3651
N.C.D.B-K. 18CA3652
R.E.K. : 18CA3653
T.A.B.K. 18CA3654
: 18CA3655
18CA3656
: 18CA3657
:
ADJUDICATED DEPENDENT CHILDREN : DECISION AND
JUDGMENT ENTRY
:
RELEASED: 04/03/2019
APPEARANCES:
Matthew P. Brady, Grove City, Ohio, for appellant mother.
Chase B. Bunstine, Chillicothe, Ohio, for appellant father.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jennifer L. Ater, Ross
County Assistant Prosecuting Attorney, Chillicothe, Ohio, for appellee.
Hess, J.
{¶1} After the Ross County Juvenile Court granted permanent custody of their
six children1 to the county Children’s Services Division (“agency”), the mother and father
appealed. The father’s sole assignment of error is that the trial court erred when it found
that the agency made reasonable efforts towards reunification. The record reflects that
the trial court made reasonable-efforts findings at several stages of the proceedings.
1The mother is the biological parent of all six children. The father is the biological parent of all the
children except I.B-C. I.B-C.’s biological father is serving a 16-year prison term.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
2
Therefore, the agency established that reasonable efforts had been made prior to the
hearing on the motion for permanent custody. Where the court has made earlier findings
that the agency made reasonable reunification efforts, it need not do so at a hearing on
a motion for permanent custody. Nonetheless the trial court made such a finding, and
the record supports it. We overrule the father’s sole assignment of error.
{¶2} The mother raises three assignments of error. First she contends that the
trial court’s finding that J.B-K. could not be placed with her within a reasonable time and
should not be placed with her was not supported by clear and convincing evidence. She
contends that the trial court did not make specific findings under the applicable statute.
However, no party filed a request for findings of fact and conclusions of law. The failure
to request findings of fact and conclusions of law ordinarily results in a waiver of the right
to challenge the trial court’s lack of an explicit finding concerning an issue. Thus we
presume that the trial court considered all the factors and all other relevant facts. The
evidence supports a finding that the mother repeatedly and continuously failed to
substantially remedy her substance abuse issue, which was one of the conditions that
caused J.B-K.’s removal. We overrule mother’s first assignment of error.
{¶3} Next she contends that the trial court erred in not determining and
specifically addressing the statutory best interest factors. Specifically, she argues that the
trial court did not consider the wishes of the children. Again, because no party requested
specific findings, the trial court had no obligation to make them. Nevertheless, we find
that the trial court considered all the enumerated best interest factors, including the
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
3
children’s wishes as expressed by the guardian ad litem, and set forth these findings even
though no party requested them. We overrule the mother’s second assignment of error.
{¶4} Last mother contends that the trial court’s determination that permanent
custody was in the best interest of the children was against the manifest weight of the
evidence. However, after weighing the evidence and all reasonable inferences,
considering the credibility of the witnesses after according the requisite deference to the
trial court’s determinations, we conclude that the trial court did not clearly lose its way or
create a manifest miscarriage of justice. We overrule the mother’s third assignment of
error and affirm the judgment of the trial court.
I. FACTS
{¶5} The agency filed dependency actions and received temporary custody of
five of the children in September 2016. In December 2016, the trial court adjudicated the
children dependent. That same month the father pled guilty to domestic violence and
endangering children involving his six-year old child, T.A.B-K.; he received a sentence of
seven months in prison. When the sixth child, J.B-K., was born in January 2017, the
agency received temporary custody. In March 2017 the trial court adjudicated J.B-K.
dependent. In June 2017 prior to the father’s release from prison, the trial court ordered
him not to have any contact with his children until further order. In January 2018, the
agency sought permanent custody of all six children under R.C. 2151.413. The guardian
ad litem recommended that the agency have permanent custody of all six children.
{¶6} The permanent custody hearing occurred over a two-day period on May 21,
and July 2, 2018. Both parents tested positive for illegal drugs at the end of the first day
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
4
of the hearing. Neither parent attended the July hearing date. The court proceeded with
the hearing in their absence, as neither had spoken with their attorney since the last
hearing and their whereabouts were unknown.
{¶7} Social worker Martha Grear testified that she was a participant with the
Ross County Family Drug Court and first began working with the mother in the summer
of 2016. Grear diagnosed the oldest child, I.B-C., with autism and attempted to help the
mother find stable housing and employment. Grear testified that the mother never
succeeded in obtaining stable housing or employment, her whereabouts became
unknown, and the drug court eventually terminated her case.
{¶8} Cheri Smitley, the coordinator for the Ross County Family Drug Court,
testified that the mother was admitted to the drug court program but she did not
successfully complete drug counseling services, stopped coming to drug court, was found
in contempt of the drug court orders, and was terminated for non-compliance with the
drug court rules and regulations. In August 2017, the court terminated the mother from
its program “for ongoing non-compliance with treatment, continued use of illegal
substances, ongoing non-compliance with RCFDC Rules, failure to appear for RCFDC
hearings without just cause, and failure to comply with child welfare case plan.”
{¶9} After the mother was terminated from drug court in August 2017, she
entered an inpatient drug treatment program for opiate dependency in October 2017. The
program administrator testified that the mother left the facility with the father on a six-hour
pass in March 2018 and never returned. The mother did not successfully complete the
drug treatment program.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
5
{¶10} Tracy Hathaway, a court liaison with a substance abuse treatment center,
testified that she saw the father while he was in the Ross County jail in January 2018 and
provided him with information about drug treatment services in Pike County where he
resided. Hathaway testified that she spoke to the father again in March 2018 and he
admitted that he had never pursued drug treatment services.
{¶11} Julia Thomes, a licensed social worker and therapist, testified that
beginning in September 2016 she provided counseling services to four of the six children
to try to stabilize their behavior issues. Thomes noted that the children’s behavioral issues
worsened after parental visits.
{¶12} Cheryl Carl supervised parental visitations between February 2017 and
March 2018. Carl testified that visitations were scheduled to occur once per week for one
hour, but the mother only attended 15 out of 23 scheduled visits and the father only
attended 3 out of 10 scheduled visits. Carl testified that the visitations were chaotic and
uncontrolled and neither parent consoled the oldest autistic child. Carl testified that she
had to cancel visitation because of the parents’ repeated failure to appear and that the
last visitation was in March 2018.
{¶13} Agency caseworker Elizabeth Radcliff testified that the agency became
involved because of the mother’s illegal drug use and her unsupervised children were
playing in the streets. When the agency became involved there were five children. The
oldest autistic child was seven years old, the other children were ages six, four, two and
one years old. Initially the agency worked with the mother and her extended family
members in a failed attempt to keep the children and mother together. The five oldest
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
6
children had been in the agency’s custody since September 2016. The agency initially
placed the sixth child, newborn infant J.B-K., born in January 2017, with a maternal aunt,
but removed and returned the infant to the agency’s custody in April 2017.
{¶14} Radcliff testified that the case plan required the mother to successfully
complete a drug treatment program, obtain and maintain suitable housing, maintain
regular contact with the case worker and the children, and refrain from criminal activities.
The mother failed to complete a drug treatment program and stopped attending children
visitations. The father attended visitations sporadically and did not maintain contact with
the agency or provide information about his whereabouts or contact information. Radcliff
testified that the mother admitted she was addicted to opiates, had overdosed on them
and the overdose scared her into checking herself into the inpatient treatment center in
October 2017.
{¶15} Radcliff testified that the mother did well on her case plan and in the drug
court program as long as the father was incarcerated, but that when he was released
from prison, the mother would regress. The parents’ failure to attend visitation upset the
older children, and when they did occur, they were very chaotic and disruptive. (Tr. 158)
Radcliff testified that after the mother left the inpatient treatment center in March 2018,
she failed to contact the agency or her caseworker and her whereabouts were unknown.
Radcliff testified that the agency learned of the parents whereabouts several months later
when the parents informed the trial court that they had moved to the Sandusky, Ohio
area.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
7
{¶16} Radcliff testified that neither parent successfully completed drug treatment
programs and neither maintained stable housing. Radcliff testified about the agency’s
efforts to assist them with drug treatment and housing. Radcliff testified that the father
never signed a case plan because he was either incarcerated or failed to appear for
visitation. The father had no contact with the agency after February 2018 and his
whereabouts were unknown. Radcliff informed the father about his case plan goals on
several occasions and provided him with addresses and actual pictures of drug treatment
and screening centers in both Ross and Pike counties. Radcliff testified that the father of
the oldest child, I.B-C., was incarcerated and would not be released from prison until
September 2024. I.B-C.’s father did not complete the case plan and had no contact with
I.B-C.
{¶17} Radcliff testified that the six children were in five different foster care
families, that all but the oldest autistic child were in adoptive foster homes and she
believed those families planned to adopt the five younger children.
{¶18} The parents failed to attend the second day of the hearing and presented
no witnesses or evidence.
{¶19} The trial court entered judgment granting permanent custody of all six
children to the agency and terminating the mother’s and fathers’ parental rights.
II. ASSIGNMENTS OF ERROR
{¶20} Father assigns the following error for our review:
1. THE TRIAL COURT ERRED IN TERMINATING APPELLANT’S
PARENTAL RIGHTS AS CHILDREN’S SERVICES DID NOT MAKE
REASONABLE EFFORTS TO PERMIT THE CHILDREN TO RETURN
HOME.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
8
{¶21} Mother assigns the following errors for our review:
1. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING
BY CLEAR AND CONVINCING EVIDENCE THAT J.B-K. CANNOT BE
PLACED WITH APPELLANT WITHIN A REASONABLE TIME OR
SHOULD NOT BE PLACED WITH APPELLANT.
2. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT
DETERMINING AND SPECIFICALLY ADDRESSING THE BEST
INTEREST FACTORS UNDER R.C. 2151.414(D).
3. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING
THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE
MINOR CHILDREN WHEN SUCH A FINDING WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
III. LAW AND ANALYSIS
A. Standard of Review
{¶22} A reviewing court will not reverse a trial court’s judgment in a permanent
custody case unless it is against the manifest weight of the evidence. See In re T.J., 4th
Dist. Highland Nos. 15CA15 and 15CA16, 2016-Ohio-163, ¶ 25. “To determine whether
a permanent custody decision is against the manifest weight of the evidence, an appellate
court must weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether in resolving evidentiary conflicts, the trial court
clearly lost its way and created such a manifest miscarriage of justice that the judgment
must be reversed * * * .” Id. at ¶ 25, citing Eastley v. Volkman, 132 Ohio St. 3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 20. In reviewing evidence under this standard, we defer
to the trial court’s determinations of matters of credibility, which are crucial in these cases,
where demeanor and attitude are not reflected well by the written record. Eastley at ¶ 21;
Davis v. Flickinger, 77 Ohio St. 3d 415, 419, 674 N.E.2d 1159 (1997).
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
9
{¶23} In a permanent custody case the dispositive issue on appeal is “whether the
trial court’s findings * * * were supported by clear and convincing evidence.” In re K.H.,
119 Ohio St. 3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; R.C. 2151.414(B)(1). “Clear
and convincing evidence” is “that measure or degree of proof which is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus; State
ex rel. Pietrangelo v. Avon Lake, 149 Ohio St. 3d 273, 2016-Ohio-5725, 74 N.E.3d 419, ¶
14. “[I]f the children services agency presented competent and credible evidence upon
which the trier of fact reasonably could have formed a firm belief that permanent custody
is warranted, then the court’s decision is not against the manifest weight of the evidence.”
In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
{¶24} “The essential question we must resolve * * * is whether the amount of
competent, credible evidence presented at trial produced in the court’s mind a firm belief
or conviction that permanent custody was warranted.” T.J. at ¶ 26.
B. The Agency’s Reasonable Reunification Efforts
{¶25} The father contends that his failure to comply with or complete the case plan
is the agency’s fault because nearly all interactions with the agency were with the mother.
Father concedes that he was incarcerated during a portion of the cases, but that there
were times he was not incarcerated. He contends that the drug court had no contact with
him and that Hathaway, who was a Ross County drug court liaison, provided him with
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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information on drug treatment services in Pike County but did not contact the agency on
his behalf.
{¶26} However, the drug court witnesses testified that drug court is a voluntary
program. There is no evidence in the record that the father volunteered to participate in
the drug court program or cooperate with and accept services or assistance from drug
court personnel. Hathaway testified that her contact with the father in the Ross County
Jail arose because she was called to do drug screenings for anyone interested in drug
and alcohol treatment. Although the father met the criteria for treatment, he was released
from jail, returned to Pike County, and did not follow through on the drug treatment
programs Hathaway provided him. His argument that Ross County Drug Court personnel
should have done more for him is baseless.
{¶27} Father also contends that caseworker Radcliff did not get his signature on
a case plan or present the case plans to him. He contends that he had “to guess” what
he was expected to do to get his children back.
{¶28} However, Radcliff testified that she informed the father several times of the
case plan goals and the services he was to complete. And she specifically told him the
drug treatment and screening programs to which he should report. Radcliff testified that
she did not obtain the father’s signature on the case plans because he was incarcerated
at the time two of them were prepared. Radcliff went to a children’s visitation session in
February 2018 to get both parent’s signature on the third case plan, but because father
was a no show, Radcliff was only able to get the mother’s signature.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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{¶29} R.C. 2151.419(A)(1) enumerates the types of hearings where the court
must determine whether the agency has made “reasonable efforts to prevent the removal
of the child from the child’s home, to eliminate the continued removal of the child from the
child’s home, or to make it possible for the child to return safely home.” The agency has
the burden of proving that it has made those reasonable efforts. This statute “makes no
reference to a hearing on a motion for permanent custody brought pursuant to R.C.
2151.413, or to hearings held on such motions pursuant to R.C. 2151.414.” In re C.F.,
113 Ohio St. 3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 41 (noting that the types of
hearings enumerated in the statute “involve adjudicatory, emergency, detention and
temporary-disposition hearings, and dispositional hearings for abused, neglected, or
dependent children, all of which occur prior to a decision transferring permanent custody
to the state”). Instead, at various stages of the child-custody proceeding, the agency may
be required to prove that it has made reasonable efforts at family reunification. “If the
agency has not established that reasonable efforts have been made prior to the hearing
on a motion for permanent custody, then it must demonstrate such efforts at that time.”
Id. at ¶ 43. Here, the permanent custody motion is governed by R.C 2151.413 and R.C.
2151.414. Therefore, the agency was not required to show reasonable reunification
efforts at the hearing unless it had not been established previously. Id.
{¶30} At several stages of the proceedings the agency established that it made
reasonable reunification efforts. In its September 15, 2016 entry granting the agency
emergency temporary custody the court found that the agency “made reasonable efforts
to prevent or eliminate the need for the children to be removed from the home.” At the
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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dependency adjudication hearing in December 2016, the trial court found that the agency
“has made reasonable efforts and continues to make reasonable efforts to make it
possible for the children to safely return home through the provision of supportive
services.” In subsequent hearings in February and June 2017, the trial court found that
the agency “has made reasonable efforts to prevent or eliminate the need for removal of
the [children] from [their] home; and the Agency has made reasonable efforts to place the
[children] and to finalize a permanency plan * * *” and the agency “has connected the
family with case management services.” In December 2017, the court held another review
hearing and found that the agency “has made reasonable efforts to prevent or eliminate
the need for removal of the [children] from [their] home * * *.”
{¶31} Because the record reflects that the trial court made reasonable-effort
findings when the children were committed to the agency’s emergency custody, during
several review stages, and at the adjudicatory hearing on dependency, the agency did
not need to prove at the permanent custody hearing that it made reasonable reunification
efforts. Nor did the trial court need to make such a determination. Id. at ¶ 42, 45.
{¶32} Although reasonable-effort findings were not required by the trial court, it
included such a finding in its judgment. We consider that finding to be surplusage, but
nonetheless supported in the record as reflected by our summary of the evidence
produced of the permanent custody hearing. We overrule the father’s sole assignment
of error.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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C. J.B-K. Cannot or Should not be Returned to Mother in a Reasonable Time
{¶33} Mother contends that because J.B-K. was not in the agency’s temporary
custody for twelve or more of a consecutive twenty-two-month period, the agency was
required to show that “the child cannot be placed with either of the child’s parents within
a reasonable time or should not be placed with the child’s parents.” R.C.
2151.414(B)(1)(a). The mother contends that the trial court was required to explain with
specificity what factor or factors under R.C. 2151.414(E) the court used to determine that
the child could not be placed within a reasonable time. Mother argues that the trial court
did not quote directly from the statute or use the phrase “continuously and repeatedly”
when discussing the parents’ failure to remedy the conditions causing the children to be
removed from the home. Thus mother contends that the language the trial court used was
insufficient to establish that the trial court made the finding under R.C. 2151.414(E)(1).
{¶34} Although the trial court entered some findings of fact and conclusions of
law, appellants did not file a request for findings of fact and conclusions of law. Civ.R. 52
states: “When questions of fact are tried by a court without a jury, judgment may be
general for the prevailing party unless one of the parties in writing requests otherwise * *
* in which case, the court shall state in writing the conclusions of fact found separately
from the conclusions of law.” R.C. 2151.414(C) states: “If the court grants permanent
custody of a child to a movant under this division, the court, upon the request of any party,
shall file a written opinion setting forth its findings of fact and conclusions of law in relation
to the proceeding.” The failure to request findings of fact and conclusions of law ordinarily
results in a waiver of the right to challenge the trial court's lack of an explicit finding
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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concerning an issue. In re Barnhart, 4th Dist. Athens No. 02CA20, 2002–Ohio–6023, ¶
23. “ ‘[W]hen a party does not request that the trial court make findings of fact and
conclusions of law under Civ.R. 52, the reviewing court will presume that the trial court
considered all the factors and all other relevant facts.’ ” Id., quoting Fallang v. Fallang,
109 Ohio App. 3d 543, 549, 672 N.E.2d 730 (12th Dist.1996).
{¶35} We apply this rule to R.C. 2151.414 permanent custody cases and have
determined that unless a party requests findings of fact and conclusions of law, a trial
court need not set forth specific factual findings regarding each R.C. 2151.414(D) best
interest factor or the factors in R.C. 2151.414(E) regarding placement with either parent
within a reasonable time. See In re C.S., 4th Dist. Athens No. 15CA18, 2015-Ohio-4883,
¶ 29-31.
{¶36} Thus, in the absence of a proper request for findings of fact and conclusions
of law, a trial court need not specifically set forth its findings regarding the R.C.
2151.414(E) factors. See In re Burton, 3rd Dist. Mercer No. 10–04–01, 2004–Ohio–4021,
¶ 22–23. Because there was no request the trial court was not required to set forth a
specific analysis of the R.C. 2151.414(E) factors. Furthermore, in the absence of findings
of fact and conclusions of law, we generally must presume that the trial court applied the
law correctly and must affirm if some evidence in the record supports its judgment. In re
C.S. at ¶ 32, ¶ 42 (Harsha, J. concurring and noting that “some evidence” in this context
means “enough to satisfy the clear and convincing standard in the mind of a reasonable
fact finder * * *.”).
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
15
{¶37} Here the trial court set forth some facts regarding the R.C. 2151.414(E)
factors. Without knowing how the trial court applied the facts to the R.C. 2151.414(E)
factors, our review is circumscribed, and we must affirm the trial court's decision if there
is some evidence to uphold it.
{¶38} R.C. 2151.414(E)(1) states:
Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
The trial court determined that the agency proved by clear and convincing evidence that
J.B-K. cannot and should not be reunified with the father or mother within a reasonable
time, that the agency made reasonable efforts at reunification, that the concerns that gave
rise to the removal of the children from their home had not been remedied, that the agency
provided case management services and referrals to service providers, and that both
parents failed to comply with or complete the case plan.
{¶39} Based on the trial court’s language, it appears that R.C. 2151.414(E)(1) was
the basis for its finding that the child could not be placed with either parent within a
reasonable time. According to the complaint, J.B-K. was removed from the mother’s
custody shortly after birth because he was born positive for opiates and the mother
continued to use drugs and test positive for amphetamines and methamphetamines. The
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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agency presented evidence that neither parent successfully completed a drug treatment
program during the pendency of the case. The father never sought treatment. The mother
was dismissed from drug court and failed to successfully complete an inpatient drug
treatment program. Additionally, both parents tested positive for drugs at the end of the
first day of the permanent custody hearing. Under these circumstances, the evidence
supports a finding that the mother repeatedly and continuously failed to substantially
remedy her substance abuse issue, which was one of the conditions that caused J.B-K.’s
removal. Consequently, the evidence supports the trial court's determination that J.B-K.
cannot be placed with either of the child’s parents within a reasonable time or should not
be placed with the child’s parents. We overrule the mother’s first assignment of error.
D. Best Interest of the Child
{¶40} Next the mother contends that the trial court erred in not determining and
specifically addressing the best interest factors, particularly the children’s wishes. She
contends that we should reject the precedent established in our district and require the
trial court to specifically address the best interest factors under R.C. 2151.414(D) even
though she did not request findings of fact and conclusions of law under Civ.R. 52 or R.C.
2151.414(C). She argues that this would provide “a more structured approach and a
better opportunity to engage in meaningful appellate review.”
{¶41} We disagree. We find that this approach would require us to rewrite the
plain language of R.C. 2151.414(C), which states “* * * the court, upon the request of any
party, shall file a written opinion setting forth its findings of fact and conclusions of law in
relation to the proceeding.” Because no party requested findings of fact and conclusions
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
17
of law, the court was not required to provide them. We see no reason to depart from our
precedent and impose duties in contravention of the statute. In the absence of findings of
fact and conclusions of law, we must presume that the trial court applied the law correctly
and must affirm if some evidence in the record supports its judgment. In re C.S. at ¶ 32,
¶ 42.
{¶42} Here, despite no formal request, the trial court made best interest findings
under R.C. 2151.414(D)(1). The trial court considered the interaction and interrelationship
of the child with relatives and foster caregivers under R.C. 2151.414(D)(1)(a) when it
found that all of the children had been previously adjudicated to be dependent children,
there were no suitable relative placements, and that the children were all doing well in
foster care and were adoptable. R.C. 2151.414(D)(1)(b) requires the trial court to consider
the children’s wishes “as expressed directly by the child or through the child’s guardian
ad litem, with due regard for the maturity of the child.” Here the children were young, their
ages ranged from 16 months to nine years old. However, the nine-year old is autistic. The
guardian ad litem prepared a report prior to the final hearing recommending that the
agency be awarded permanent custody. The trial court acknowledged the report and
expressly stated that the guardian ad litem recommended the agency’s motion be
granted. Thus the trial court did consider the children’s wishes as expressed through the
guardian ad litem, with due regard for the maturity of the children as required by R.C.
2151.414(D)(1)(b). The trial court acknowledged the custodial history as required under
R.C. 2151.414(D)(1)(c), finding that five of the children had been in the temporary custody
of the agency for twelve or more months of a twenty-two month period. Finally, the trial
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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court considered the children’s needs for a legally secure placement under R.C.
2151.414(D)(1)(d) and found that all of the children are in need of permanency which
cannot be obtained without the grant of permanent custody to the agency.
{¶43} The trial court considered all the enumerated best interest factors, including
the children’s wishes as expressed by the guardian ad litem and set forth these findings
even though no party requested them. We overrule the mother’s second assignment of
error.
E. Permanent Custody Finding
{¶44} The mother contends that the trial court’s permanent custody award was
erroneous because its best interest finding was against the manifest weight of the
evidence.
1. Permanent Custody Principles
{¶45} “The United States Supreme Court has stated that parents’ interest in the
care, custody, and control of their children ‘is perhaps the oldest of the fundamental liberty
interests recognized by this Court.’ ” In re B.C., 141 Ohio St. 3d 55, 2014-Ohio-4558, 21
N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147
L. Ed. 2d 49 (2000). “It is irrefutable that parents have fundamental constitutional rights
free from government intervention in their decisions on the custody and caretaking of their
children.” In re Mullen, 129 Ohio St. 3d 217, 2011-Ohio-3361, 953 N.E.2d 302, ¶ 26, citing
In re Hockstok, 98 Ohio St. 3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16. “It is also
irrefutable that those rights are not absolute.” Mullen at ¶ 26; In re D.A., 113 Ohio St. 3d
88 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Instead, “ ‘it is plain that the natural rights of
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18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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a parent * * * are always subject to the ultimate welfare of the child, which is the pole star
or controlling principle to be observed.’ ” In re Cunningham, 59 Ohio St. 2d 100, 106, 391
N.E.2d 1034 (1979), quoting In re R.J.C., 200 So. 2d 54, 58 (Fla.App.1974). Thus, the
state may terminate parental rights when the child’s best interest requires it. D.A. at ¶ 11.
2. Permanent Custody Framework
{¶46} R.C. 2151.353(A)(4) permits a trial court to grant permanent custody of a
child that is adjudicated an abused, neglected, or dependent to a children services agency
if the court determines: (1) that the child cannot be placed with one of the child’s parents
within a reasonable time or should not be placed with either parent as provided in R.C.
2151.414(E) and (2) that the permanent commitment is in the best interest of the child as
provided in R.C. 2151.414(D)(1)(a)-(e). The mother contests the second prong: the best
interest finding.
3. Trial Court’s Best Interest Finding
{¶47} Again, because no party requested findings of fact and conclusions of law,
the court was not required to provide them. In the absence of findings of fact and
conclusions of law, we presume that the trial court applied the law correctly and must
affirm if some evidence in the record supports its judgment. In re C.S. at ¶ 32, ¶ 42.
{¶48} R.C. 2151.414(D)(1) requires the trial court “to consider ‘all relevant factors,’
including five enumerated statutory factors * * *. No one element is given greater weight
or heightened significance.” In re C.F., 113 Ohio St. 3d 73, 2007–Ohio–1104, 862 N.E.2d
816, ¶ 57, citing In re Schaefer, 111 Ohio St. 3d 498, 2006–Ohio–5513, 857 N .E.2d 532,
¶ 6. The five enumerated factors include: (1) the child's interaction and interrelationship
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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with the child's parents, siblings, relatives, foster parents and out-of-home providers, and
any other person who may significantly affect the child; (2) the child's wishes, as
expressed directly by the child or through the child's guardian ad litem, with due regard
for the child's maturity; (3) the child's custodial history; (4) the child's need for a legally
secure permanent placement and whether that type of placement can be achieved
without a grant of permanent custody to the agency; and (5) whether any factors listed
under R.C. 2151.414(E)(7) to (11) apply.2
{¶49} The mother contends that there was little evidence in the record about the
children’s interaction with their foster care providers but ample evidence that the children
are bonded with each other. She argues that although there was evidence that the foster
homes were facilitating the children’s relationships with each other, she speculates
whether this will continue. However, Radcliff testified that due to the children’s extreme
behavior issues, the children had to be placed in several different homes and were
receiving counseling. Radcliff testified that four of the foster homes “are family, so the
children are all able to see one another without residing in the same home” and that their
visits have been “very strong” and “they see one another often.” Radcliff testified that all
but the oldest child are in foster homes that intend to adopt the children. The mother cites
no evidence in the record, nor have we found any, to support her speculation that at some
point in the future, the children’s bonds with each other will be severed. We find no support
for the mother’s argument that this factor (children’s interactions and interrelationship)
2 The parties apparently concede that none of the factors listed in R.C. 2151.414(E)(7)-(11) apply and the
trial court did not expressly find that any of those factors applied.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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supported a finding that permanent custody to the agency would not be in their best
interest.
{¶50} We addressed the factor concerning the children’s wishes when addressing
the mother’s second assignment of error. In light of the children’s ages and mental
conditions, the trial court considered the recommendation of their guardian ad litem that
the agency be awarded permanent custody. And, despite her assertion that the trial
court’s failure to consider the children's wishes constitutes reversible error, she never
objected to the guardian ad litem’s report; she never questioned the guardian ad litem
regarding the children’s wishes; she never requested the trial court to conduct an in
camera interview of the children; and she never objected to the trial court’s failure to do.
Thus, appellant failed to preserve this issue for appellate review. We find no plain error in
the trial court’s consideration of the guardian ad litem’s report and recommendation. See
In re S.M., 4th Dist. Highland No. 14CA4, 2014-Ohio-2961, ¶ 33, and cases cited therein.
{¶51} Next the mother contends that the children’s custodial history was also a
factor that weighed against the trial court’s grant of permanent custody. However, she
concedes that the five oldest children had been in the agency’s custody for approximately
a year and a half. During this time the mother was never able to successfully complete a
drug treatment program and continued to test positive for illegal drug use. Although she
argues that there “was considerable time left for her to reunite with J.B-K.,” the youngest
child, this is again a speculative argument unsupported by the record. She failed multiple
drug treatment programs, failed to visit the children, failed to notify the agency of her
whereabouts, moved to Sandusky, Ohio, tested positive for illegal drugs the first day of
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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the permanent custody hearing, and failed to appear for the second day of the hearing.
The evidence concerning the children’s custodial history supported the trial court’s best
interest finding.
{¶52} Last the mother contends that she has the ability to provide a legally secure
permanent placement. However, the only evidence she cites is testimony of Radcliff that
the mother was able to provide an adequate environment in September 2016. Since that
time, the testimony of several witnesses was that the mother was unable to secure
adequate housing. The mother provided no evidence to refute these witnesses. We find
that this factor weighed in favor of the trial court’s best interest finding.
{¶53} After weighing the evidence and all reasonable inferences, considering the
credibility of the witnesses after according the requisite deference to the trial court’s
determinations, we conclude that in resolving evidentiary conflicts, the trial court did not
clearly lose its way or create a manifest miscarriage of justice requiring us to reverse its
judgment awarding permanent custody of the children to the agency. We overrule the
mother’s third assignment of error and affirm the judgment of the trial court.
IV. CONCLUSION
{¶54} The trial court’s determinations that the agency used best efforts to
accomplish reunification, that the children should not be placed with either parent, and
that the permanent commitment is in the best interest of the children are all supported by
the manifest weight of the evidence. Having overruled the assignments of error, we affirm
the judgment of the trial court awarding permanent custody of the children to the agency.
JUDGMENT AFFIRMED.
Ross App. Nos. 18CA3647, 18CA3648, 18CA3649, 18CA3650, 18CA3651, 18CA3652,
18CA3653, 18CA3654, 18CA3655, 18CA3656, 18CA3657
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JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross
County Court of Common Pleas, Juvenile Division to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & McFarland, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.