In re L.R. , 2023 Ohio 1385 ( 2023 )

[Cite as In re L.R., 2023-Ohio-1385.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
[L.R. et al., No. 22AP-197
: (C.P.C. No. 18JU-11703)
L.D.R., Father,
Appellant]. : No. 22AP-198
(C.P.C. No. 18JU-11707)
:
No. 22AP-199
: (C.P.C. No. 18JU-11710)
: No. 22AP-200
(C.P.C. No. 19JU-10033)
:
(ACCELERATED CALENDAR)
D E C I S I O N
Rendered on April 27, 2023
On brief: Campbell Law, LLC, and April F. Campbell, for
appellant, L.D.R., father.
On brief: Jessica M. Ismond, for appellee, Franklin County
Children Services.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
BEATTY BLUNT, P.J.
{¶ 1} Appellant, L.D.R., father, appeals the March 1, 2022 decision and judgment
entries from the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch, terminating the parental rights of appellant and granting permanent
custody of Le.R., Leg.R., L.R., and Lo.R. (collectively, the “children”), to Franklin County
Children Services (“FCCS”). For the following reasons, we affirm.
I. Facts and Procedural History
{¶ 2} On October 4, 2018, FCCS filed three separate complaints in the Franklin
County Court of Common Pleas, Domestic Relations, Juvenile Division under Franklin C.P.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 2
Nos. 18JU-11703, 18JU-11707 and 18JU-11710, alleging that appellant’s children,1 Le.R.
(d.o.b. 06/07/2017), Leg.R. (d.o.b. 06/29/2018), and L.R. (d.o.b. 08/28/2014) were
abused, neglected, and dependent children. On August 28, 2019, FCCS filed a fourth
complaint under Franklin C.P. No. 19JU-10033 alleging that appellant’s child, Lo.R. (d.o.b.
08/26/2019) was an abused, neglected, and dependent child.
{¶ 3} On October 11, 2018, the court ordered L.R., Le.R., and Leg.R. be removed
from the care of appellant and their mother, M.H (“Mother”). (Oct. 11, 2018 Mag.’s Orders.)
On December 18, 2018, the court adjudicated L.R. neglected and dependent under case No.
18JU-11710. (Jan. 10, 2019 Jgmt. Entry.) On the same date, the court also adjudicated
Le.R. and Leg.R. abused, neglected, and dependent children under case Nos. 18JU-11703
and 18JU-11707. (Jgmt. Entry.) On August 29, 2019, the court ordered Lo.R. be removed
from the care of appellant and M.H., and on November 25, 2019, the court adjudicated
Lo.R. an abused, neglected, and dependent child under case No. 19JU-10033. (Dec. 3, 2019
Jgmt. Entry.) On the respective dates of the adjudicatory hearing for each of the children,
the court granted FCCS a post-adjudication order of temporary custody (“TCC”).
{¶ 4} On November 15, 2020, FCCS filed motions for Permanent Court
Commitment (“PCC”) of L.R., Le.R., and Leg.R., and on November 17, 2020 FCCS filed a
motion for PCC of Lo.R. All four cases proceeded to trial on FCCS’ motions for PCC
commenced on November 1, 2021. At trial, FCCS called two witnesses: the children's
Guardian ad Litem (“GAL”), Jason Russ, and the ongoing caseworker from Permanent
Family Solutions Network (“PFSN”), Tina Brown. After FCCS rested its case, no other
evidence was presented.2 The following evidence was adduced at trial.
{¶ 5} The GAL, Jason Russ, testified first and provided the following testimony.
Jason Russ was appointed to serve as the GAL for all four children. He had been the GAL
for the three older children (L.R., Le.R., and Leg.R.) since October 2018 and for the
youngest child (Lo.R.) since October 2019. He had been out to the foster home “at least six
times, probably eight to ten times.” (Nov. 1, 2021 Tr. at 13.) He also had observed a visit
1 All of the children’s namesbegin with the letter “L,” and therefore additional abbreviations are used herein
to differentiate them for clarity. The oldest is L.R., a female born 08/28/2014; the next oldest is Le.R., a
male born 06/07/2017; the next oldest is Leg.R., a male born 06/29/2018; and the youngest child part of
this case is Lo.R., a male born 08/26/2019.
2 Appellant did not appear at trial.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 3
between appellant, M.H., and three of the children that occurred in February 2021. He
testified that while the visit he observed was appropriate, he was not able to determine
whether “a whole lot of a bond” existed between appellant, Mother, and the children. (Tr.
at 13.) He further testified that although Mother was present during this entire visit,
appellant was “gone about half the time” because he went to purchase food for the visit.
(Tr. at 13-14.)
{¶ 6} Russ testified that he was unable to have more than one observed visit
between appellant, Mother, and the children because their visits had been “sporadic at best
and they’d been suspended since March of this year [2021].” (Tr. at 14.) He was unaware
of any time during the pendency of the case when appellant and Mother consistently visited
with the children. He had almost no contact with appellant or Mother during the pendency
of the case. He never had accurate up to date contact information for appellant or Mother,
and they had never called him or contacted him in any way.
{¶ 7} Russ testified that during the times he visited the children’s foster home, he
was able to meet the children’s foster mother and foster father. He never observed anything
of concern in the foster home. Russ testified that the children were “very much bonded to
the foster parents.” (Tr. at 14-15.) He further testified that while he had spoken to L.R. and
tried to talk to the other children about what permanent custody means and express their
wishes, L.R. was the only child who was old enough to understand what it means and to
express her wishes. Russ had spoken with L.R. at least four times about her wishes and she
expressed to him that she wished to remain with her current foster family.
{¶ 8} Finally, Russ testified that his recommendation was that FCCS receive
permanent custody of all four children.
{¶ 9} Following the testimony of the GAL, FCCS called child welfare caseworker
Tina Brown to testify. Tina Brown testified she was the assigned caseworker for the
children since November 2, 2018. She testified that paternity for appellant had been
established only for Le.R., but that appellant is the putative father for the other children.
{¶ 10} Brown testified that FCCS became involved with the family after Leg.R. was
born and the baby “tested positive at birth.”3 Brown testified that appellant and Mother,
who both lived with the children’s maternal grandmother, were involved in drugs and there
3 The record does not reflect for what specific substance or substances the baby tested positive.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 4
was drug paraphernalia laying around the home. The children were initially placed with
their maternal grandmother with a safety plan in place, but a violation occurred when
Mother was left alone with the children, at which point the children were removed from the
home. FCCS received temporary custody of L.R., Le.R., and Leg.R. on October 22, 2018,
and of Lo.R. on August 29, 2019. Each of the children remained in the custody of FCCS
since the initial custody dates.
{¶ 11} Brown further testified that, at the time of the hearing on the PCC motions,
she was not sure of the whereabouts of either appellant or Mother or where they were
residing. Brown had contact with appellant and Mother via text messaging and phone calls,
but they did not always respond to her attempts to contact them. She had intermittent
contact with them during the pendency of the case and had contacted them the Friday
before the hearing “but they never responded.” (Tr. at 24.) During the course of the time
Brown had worked with appellant and Mother, they had only one established residence
where Brown could visit with them and that was at the very beginning of the case when they
were still living with the children’s maternal grandmother. Brown was aware that appellant
and Mother had been served with process of the motions for PCC by publication because
the process server reported they were not living at the address they had provided.
{¶ 12} Brown testified that she had attempted to meet with appellant and Mother
“many, many of - - many times” to discuss why they were unable to make visits with the
children and to review the case plan. She testified she scheduled at least six meetings but
“they would always say that they never got the information[,] that I never set it up. So I
made sure I texted them so that I could, * * * have something to show them and say I did
text you, to set up a time to meet.” (Tr. at 26-27.)
{¶ 13} As part of her case plan, Mother was required to complete drug screens, an
alcohol and drug (“AOD”) assessment, mental health assessment, domestic violence
assessment, and parenting classes. Despite having been given information by Brown to link
with the services needed to complete her case plan objectives, including referrals and phone
numbers, Mother completed only a domestic violence assessment and one urine screen.
Brown testified Mother never completed the AOD assessment.
{¶ 14} As part of his case plan, appellant was required to complete an AOD
assessment, domestic violence assessment, drug screens, parenting classes, and establish
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 5
safe and stable housing and verifiable income. Brown provided appellant with information
to help him complete his case plan objectives, including providing him with phone numbers
and referrals. Brown testified that she discussed the importance of completing the case
plan with appellant, but he told Brown that “he should not have to complete any case plan
services” because the children were removed due to Mother’s actions, not his. (Tr. at 30-
31.) Brown testified that during the pendency of the case, appellant did not take any steps
to complete any aspect of the case plan.
{¶ 15} Brown next testified regarding appellant and Mother’s visitation with the
children. She testified that appellant and Mother were permitted to visit with the children
every week. Mother was in and out of jail during the case, and she visited with the children
no more than 15 times since the case opened in 2018. When visits did occur, appellant and
Mother would usually visit the children together unless Mother was in jail, in which case
appellant “did come sometimes to the visit and see the kids.” (Tr. at 32.) The last visit of
Mother and appellant was on March 24, 2021. Brown testified that the parents’ visitation
had been suspended due to lack of showing up for visits on a consistent basis. Brown
testified that in order for them to have their visits reinstated, appellant and Mother were
required to come in and meet with Brown, her supervisor, and the person who helps set up
the visits. Brown testified that despite having scheduled at least six appointments with the
parents to come in and meet, despite having been advised as recently as August 2021 that
they could just come in any Monday, Tuesday, or Wednesday of any week to meet, as of the
date of the hearing Brown had heard nothing from either of them.
{¶ 16} Brown testified that she was unaware of any relatives who wished or were
able to have placement of the children. FCCS spoke with appellant’s mother, Mother’s
mother, and Mother’s brother as possible placement options, but each was either
uninterested or unable to take all the children together or was otherwise not able to be
approved.
{¶ 17} Brown further testified that the children were all placed together in the same
foster home which had been the same foster home since their respective removals in 2018
and 2019. Brown testified that the children are “very, very bonded” to their foster parents.
(Id. at 35) Brown was usually at the foster home for at least one hour every month, where
she watched the children interact with the foster parents and the other children in the home
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 6
and observed the children “always going up to * * * both foster parents and hugging them”
and asking for things. (Tr. at 35.) Brown also testified that the children are very bonded
with each other and always play together and do everything together. Brown testified the
foster home where the children are currently placed had been identified as a prospective
adoptive foster home, and the foster parents would like to adopt all the children.
{¶ 18} Brown testified she had an opportunity to observe the visits between
appellant, Mother, and the children. She testified that Leg.R. was “definitely not” bonded
to appellant and Mother and that she would cry, “especially when the kids would get there
to the office.” (Tr. at 36-37.) Leg.R. “had actually vomit[ed] a couple of times.” (Tr. at 37.)
Brown testified that Le.R. was “not so much” bonded to appellant and Mother; and that
L.R. was bonded at the beginning of the case when appellant and Mother’s visits were still
occurring, but after several missed visits, the bond started to diminish. (Tr. at 36.) Brown
further expounded on her testimony by explaining that Le.R. and L.R. would just ask their
parents for their phones “and they would just pretty much sit on the phones and play on
[them] pretty much most of the time” except when appellant or Mother brought food, at
which point they would stop to eat. Id. Brown further testified on this point, “[b]ut other
than that, they - - they really didn’t * * * want to sit next to the parents too much.” (Tr. at
36-37.) Brown testified that Lo.R. also did not seem to be very bonded to appellant and
Mother. Brown testified that Lo.R. “would cry quite a bit” and “would scream most of the
visit and then be ready to go or want to come to me and wanted to leave.” (Tr. at 37.)
{¶ 19} Finally, Brown testified that she agreed with the GAL’s assessment that L.R.
is the only child who really understands what permanent custody means and is able to
express her wishes. Brown testified that when she spoke with L.R. the month before the
hearing and asked her where she would want to live if she could live anywhere, L.R.’s
response was that she wanted to live with her foster parents “until I get married.” (Tr. at
37-38.) Brown testified that all four of the children are in need of a legally secure
permanent placement, and that her recommendation is permanent custody for the purpose
of adoption.
{¶ 20} Following the trial, on March 1, 2022, the trial court issued a judgment entry
sustaining FCCS’ motions for permanent custody and divesting the parents of their parental
rights. The trial court considered each of the factors in R.C. 2151.414(D) and determined
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 7
there was clear and convincing evidence that it was in the children’s best interest to grant
the motion for permanent custody.
{¶ 21} This timely appeal followed.
II. Assignment of Error
{¶ 22} Appellant assigns the following errors for our review:
[I.] The trial court plainly erred in admitting the
Guardian ad Litem’s testimony.
[II.] The trial court’s decision to grant permanent
custody of [appellant] children to Franklin County
Children Services should be reversed, because it is not
in the children’s best interest.
III. Standard of Review
{¶ 23} A trial court's determination in a permanent custody case will not be reversed
on appeal unless it is against the manifest weight of the evidence. In re Andy-Jones, 10th
Dist. No. 03AP-1167, 2004-Ohio-3312, ¶ 28; In re B.B.H., 10th Dist. No. 14AP-882, 2015-
Ohio-2347, ¶ 14. “Judgments are not against the manifest weight of the evidence when all
material elements are supported by competent, credible evidence.” In re J.T., 10th Dist.
No. 11AP-1056, 2012-Ohio-2818, ¶ 8. Accordingly, an appellate court “ ‘will not overturn a
permanent custody order when it is supported by competent, credible evidence.’ ” In re
M.W., 10th Dist. No. 11AP-524, 2011-Ohio-6392, ¶ 20, quoting In re Siders, 10th Dist. No.
96APF04-413, 1996 Ohio App. LEXIS 4805 *9 (Oct. 29, 1996), citing In re Brofford, 83
Ohio App.3d 869, 876-77 (10th Dist.1992). Further, “[i]n reviewing a judgment granting
permanent custody to FCCS, an appellate court ‘must make every reasonable presumption
in favor of the judgment and the trial court's findings of facts.’ ” Id., quoting In re P.G., 10th
Dist. No. 11AP-574, 2012-Ohio-469, ¶ 37. “ ‘[I]f the evidence is susceptible of more than
one construction, we must give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the [juvenile] court’s verdict and judgment.’ ”
In re Brooks, 10th Dist. No. 04AP-164, 2004-Ohio-3887, ¶ 59, quoting Karches v.
Cincinnati, 38 Ohio St.3d 12, 19 (1988).
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 8
IV. Discussion
A. First Assignment of Error
{¶ 24} In apellant’s first assignment of error, he asserts the trial court plainly erred
in admitting the GAL’s testimony. We disagree.
{¶ 25} Counsel for appellant did not object to the admission of the GAL’s testimony
in the trial court. Therefore, as appellant concedes, we review this assignment of error for
plain error in considering whether the trial court erred by admitting the GAL’s testimony.
In re D.E., 10th Dist. No. 20AP-83, 2021-Ohio-524, ¶ 76. “In civil cases, the plain error
doctrine is not favored and may only be applied in the extremely rare case involving
exceptional circumstances such that the error, if left uncorrected, would challenge the
fairness, integrity, or public reputation of the judicial process itself.” Brisco v. U.S.
Restoration & Remodeling, Inc., 10th Dist. No. 18AP-109, 2019-Ohio-5318, ¶ 25. See State
v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 40, quoting Goldfuss v. Davidson, 79
Ohio St.3d 116, 121 (1997) (stating that “[a]s when they apply criminal plain-error review,
reviewing courts applying civil plain-error review ‘must proceed with the utmost caution,
limiting the doctrine strictly to those extremely rare cases where exceptional circumstances
require its application to prevent a manifest miscarriage of justice’ ”); In re L.W., 10th Dist.
No. 17AP-586, 2018-Ohio-2099, ¶ 36. “ ‘Because parental rights determinations are
difficult to make and appellate courts accord wide latitude to the trial court’s consideration
of evidence in these cases, “[p]lain error is particularly difficult to establish.” ’ ” Hamilton
v. Hamilton, 10th Dist. No. 14AP-1061, 2016-Ohio-5900, ¶ 8, quoting Faulks v. Flynn, 4th
Dist. No. 13CA3568, 2014-Ohio-1610, ¶ 20, quoting Robinette v. Bryant, 4th Dist. No.
12CA20, 2013-Ohio-2889, ¶ 28.
{¶ 26} Under this assignment of error, appellant asserts, in essence, that the GAL’s
testimony should not have been admitted because one, he did not provide testimony
regarding the wishes of three of the four children; and two, because he did not observe any
visits between one of the children and appellant and offered no explanation for this, and
observed only one visit between the other three children and appellant, thereby precluding
him from being competent to testify as to their wishes in any event. Appellant’s assertions
are disingenuous at best.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 9
{¶ 27} Initially, we note that the record shows that the GAL explained why he was
unable to observe any visits between appellant and his youngest child and was able to
observe only one visit with the other children. The GAL testified that both appellant and
Mother visited with the children sporadically, which made it difficult to schedule a time to
observe a visit between appellant, Mother, and the children. Additionally, the GAL testified
that appellant’s visitation was suspended in March, 2021. The GAL clearly testified that
there was never a time during his serving as GAL that either Mother or appellant
consistently attended visits with the children. Appellant cannot now be heard to complain
about the lack of opportunity for the GAL to observe visits between himself and his children
when it is appellant himself who created that lack of opportunity, and the GAL’s
competence to testify on these matters is not negated thereby.
{¶ 28} Furthermore, in its March 1, 2022 judgment entry, the trial court noted that
although the GAL had not had much opportunity to observe visits between the children and
the parents due to the parents’ sporadic visitation and was unable to testify about the bond
between appellant and the children, Brown’s testimony provided additional information
about visits between appellant and all the children. Thus, the trial court heard evidence
regarding observed visits with all the children. The trial court based its decision to grant
FCCS’ motions for PCC on several factors, and appellant has provided no evidence
demonstrating that the trial court’s decision was improperly based solely or weighted more
heavily on this one aspect of the case.
{¶ 29} As for the GAL’s lack of testimony regarding the wishes of three of the four
children, he clearly testified that only the oldest child, L.R., was mature enough to
understand what permanent custody meant and to express her wishes as to same.
Furthermore, Brown testified that she agreed with the foregoing assessment. The GAL
testified that he had spoken with L.R. at least four times about the issue, and that she had
expressed that she wished to remain with her current foster family. Therefore, the record
evinces testimony regarding the oldest child’s wishes and that both the GAL and the
caseworker believed the three younger children were not mature enough to understand
what permanent custody meant and to express their wishes regarding same.
{¶ 30} Moreover, the case cited by appellant in support of his argument on this point
actually supports the result in the instant matter. In In re Lopez, 166 Ohio App.3d 688,
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 10
2006-Ohio-2251, the Third District Court of Appeals reversed the trial court’s grant of PCC
with respect to the oldest child in that case because the GAL did not provide any testimony
or information in the GAL’s report indicating what that child’s wishes were regarding
custody, or whether the child was mature enough to express such wishes. Lopez at ¶ 36.
The appellate court did not, however, reverse the trial court’s decision as it related to the
three younger children in the case, who were aged three years old, three years old, and two
years old, respectively. Id. at ¶ 38. As discussed above, in this case the GAL did provide
testimony regarding the oldest child’s wishes, and specifically testified that the three
youngest children were not mature enough to understand and express their wishes.
{¶ 31} Accordingly, based on the foregoing, the trial court did not plainly err in
admitting the GAL’s testimony, and appellant’s first assignment of error is overruled.
B. Second Assignment of Error
{¶ 32} In appellant’s second assignment of error, he asserts the trial court’s decision
to grant permanent custody of the children was not in the children’s best interest. This
assignment of error lacks merit.
{¶ 33} “Parents have a constitutionally-protected fundamental interest in the care,
custody, and management of their children.” In re H.D., 10th Dist. No. 13AP-707, 2014-
Ohio-228, ¶ 10, citing Troxel v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court of
Ohio likewise has recognized the essential and basic right of a parent to raise his or her
child. In re Murray, 52 Ohio St.3d 155, 157 (1990); In re C.F., 113 Ohio St.3d 73, 2007-
Ohio-1104, ¶ 28. “Parental rights, however, are not absolute, and a parent’s natural rights
are always subject to the ultimate welfare of the child.” In re E.B., 10th Dist. No. 16AP-352,
2017-Ohio-2672, ¶ 19, citing In re K.M., 10th Dist. No. 15AP-64, 2015-Ohio-4682, ¶ 15, and
In re Cunningham, 59 Ohio St.2d 100, 106 (1979). In certain circumstances, therefore, the
state may terminate the parental rights of natural parents when such termination is in the
best interest of the child. H.D. at ¶ 10, citing In re E.G., 10th Dist. No. 07AP-26, 2007-Ohio-
3658, ¶ 8, citing In re Harmon, 4th Dist. No. 00 CA 2694 (Sept. 25, 2000); In re Wise, 96
Ohio App.3d 619, 624 (9th Dist.1994).
{¶ 34} R.C. 2151.413 permissively allows a public agency to file a motion requesting
permanent custody of a child under certain circumstances. When the child has been in the
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 11
temporary custody of a public agency for 12 or more months out of a consecutive 22-month
period, though, the agency must file for permanent custody. R.C. 2151.413(D)(1).
{¶ 35} R.C. 2151.414(B)(1) permits a court to grant permanent custody of a child to
a public agency if, after a hearing, it determines “by clear and convincing evidence, that ‘(1)
any of the circumstances in R.C. 2151.414(B)(1)(a) through (d) exist, and (2) such relief is
in the best interest of the child.’ ” In re E.B. at ¶ 22, quoting In re K.M. at ¶ 14. Clear and
convincing evidence means evidence that creates a firm belief or conviction as to the facts
sought to be established. In re E.B. at ¶ 22, citing In re K.H., 119 Ohio St.3d 538, 2008-
Ohio-4825, ¶ 42; Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
“It is more than a mere preponderance of the evidence but does not require proof beyond a
reasonable doubt.” In re K.L., 10th Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 14. Thus, “[a]
decision to award permanent custody requires the trial court to take a two-step approach.”
Id. at ¶ 18. “First, a trial court must determine if any of the factors set forth in R.C.
2151.414(B)(1) apply.” Id. Second, the court determines whether granting permanent
custody to FCCS is in the best interest of the child. Id.
{¶ 36} Relevant to this appeal, R.C. 2151.414(B)(1)(d) provides the following
circumstances under which FCCS can move for permanent custody:
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
{¶ 37} In this case, it is undisputed that the three oldest children were in the
temporary custody of FCCS for 12 or more months of a consecutive 22-month period. It is
further undisputed that the youngest child was in the continuous custody of FCCS for a
period of over 12 months, from 60 days after his removal from the home, October 27, 2019,
to the date of the filing of the motion for PCC on November 17, 2020. Thus, the statutory
factor in R.C. 2151.414(B)(1)(d) was established by clear and convincing evidence.
4 The trial court also found that the factor set forth in R.C. 2151.414(B)(1)(a) (the children could not be
placed with either appellant or their Mother within a reasonable time and should not be placed with their
parents) was applicable in this case. In any event, appellant does not dispute that the first part of the
permanent custody analysis is met under R.C. 2151.414(B)(1)(d) and that FCCS need not provide any
additional evidence as to the first part of the permanent custody test.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 12
{¶ 38} Next, in determining the best interest of a child, R.C. 2151.414(D)(1)(a)
through (e) sets forth the relevant factors that the court must consider in determining what
is in the best interests of the child:
(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, 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 * * *;
(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.
R.C. 2151.414(D)(1)(a) through (e). R.C. 2151.414(D) does not give any one factor “greater
relevance than the others.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 56.
{¶ 39} In this case, the evidence at trial overwhelmingly supported the trial court’s
conclusion that granting permanent custody to FCCS was in the children’s best interests,
and the trial court thoroughly explained its reasoning as it pertained to the four factors
relevant in this case in its March 1, 2022 judgment entry. (Mar. 1, 2022 Jgmt. Entry at 23-
26.)5 We discuss each of these factors in turn.
{¶ 40} Under R.C. 2151.414(D)(1)(a), the trial court was required to consider the
interactions and relationships between the child and the individuals in the child’s life,
including the child’s parents, siblings, relatives, and “any other person who may
significantly affect the child.” Here, the trial court found that appellant and Mother had
5Indeed, the only factor which appellant argues was not adequately considered by the trial court was that
of R.C. 2151.414(D)(1)(b), which addresses the wishes of the child as expressed by the child or through his
or her guardian ad litem.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 13
sporadically visited the children throughout the pendency of the case, and last visited with
them on March, 24, 2021. The trial court noted that appellant’s and Mother’s visits were
suspended due to their “constant failure to visit.” (Jgmt. Entry at 23.) The trial court
considered the testimony of both the GAL and the caseworker concerning the children’s
lack of bonding with either of their parents, noting that although the oldest child was
initially bonded with appellant and Mother, that bond lessened as the visits lessened.
Finally, the trial court acknowledged the testimony of the caseworker that during visits the
youngest child does not seem bonded to either appellant or Mother, “and in fact he often
screams, cries, wants to leave or wants to go to the Caseworker.” Id.{¶ 41} In contrast, the trial court found that neither the GAL nor the caseworker had
any concerns with the foster home where all four children had been placed. The trial court
further observed that both the GAL and the caseworker emphasized “how very bonded the
[c]hildren are to their foster parents” and that the children are loving and affectionate with
their foster parents and look to them to meet their needs and wants.” (Jgmt. Entry at 24.)
The trial court also noted the testimony of the caseworker that the children are very bonded
to one another and do everything together. The evidence in the form of the testimony from
the caseworker and the GAL readily supported all of these findings and supported a
conclusion that the children’s relationships with their foster family and each other are much
stronger than their relationship with appellant. Therefore, the “interaction and
relationship” factor weighed in favor of awarding permanent custody to FCCS.
{¶ 42} Next, R.C. 2151.414(D)(1)(b) required the trial court to consider the wishes of
the child, expressed either directly by the child or through the child’s guardian ad litem. In
this case, as discussed above, the GAL testified that while he had spoken to the oldest child
L.R. and tried to talk to the three youngest children about what permanent custody means
and express their wishes, the oldest child was the only child who was old enough to
understand what it means and to express her wishes. As noted previously, the GAL testified
he had spoken with L.R. at least four times about her wishes and she expressed to him that
she wished to remain with her current foster family. We have already found the GAL’s
testimony on this factor was competent, credible evidence which the trial court properly
admitted. In its judgment entry, the trial court specifically found that only the oldest child
L.R. was “of the age and maturity to understand what PCC means and express her wishes.”
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 14
(Jgmt. Entry at 24.) The trial court further noted the GAL’s testimony that the children are
very bonded to the foster parents and recommendation that FCCS’ motions for PCC of all
the children be granted, and that there was “no conflict between his recommendation and
the Children’s wishes.” Id.{¶ 43} Notwithstanding the foregoing, appellant insists that the lack of testimony
specifying the wishes of the three youngest children is fatal to the trial court’s finding that
granting permanent custody of all the children was supported by clear and convincing
evidence sufficient to decide the children’s best interests. Appellant’s contention is
meritless. The testimony in this case by both the GAL and the caseworker demonstrates
that the three youngest children, who were four years old, three years old, and two years
old at the time of the hearing, were not mature enough to understand what permanent
custody meant and to express their wishes. We have previously found that where the record
affirmatively shows through credible evidence that a child is not capable of communicating
his or her wishes, the trial court is excused from considering the child’s wishes. In re J.W.,
10th Dist. No. 06AP-864, 2007-Ohio-1419, ¶ 18, citing In re Wright, 10th Dist. No. 04AP-
435, 2004-Ohio-4045, ¶ 12. Here, both the GAL’s and the caseworker’s testimony credibly
and affirmatively demonstrated that only the oldest child was mature enough to express
her wishes regarding custody and that granting permanent custody was in all the children’s
best interests. As noted above, the trial court specifically made this finding in its judgment
entry, and we find nothing in the record requiring us to reverse it. Thus, this factor weighs
in favor of the trial court granting permanent custody to FCCS.
{¶ 44} Next, R.C. 2151.414(D)(1)(c) required the trial court to consider the custodial
history of the child. In this case, it is undisputed, and the trial court found that the oldest
child was now seven years old and had not lived with appellant or Mother since he was four
years old. The next oldest child was now four years old and had not lived with appellant or
Mother since he was one year old. The second to youngest child was now three years old
and had not lived with appellant or Mother since he was three and one-half months old.
Finally, the youngest child was now two years old and had never lived with either appellant
or Mother. It is also undisputed, and the trial court further determined, that since their
removal, all the children have remained placed in their current foster home. Finally, the
trial court found that the children had been in the temporary custody of FCCS for more than
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 15
12 months in a consecutive 22-month period. The foregoing findings are supported by the
evidence and this factor weighs in favor of awarding permanent custody to FCCS.
{¶ 45} Next, R.C. 2151.414(D)(1)(d) addresses the child's need for legally secure
permanent placement and required the court to consider whether this could be achieved
without a grant of permanent custody to FCCS. Here, the trial court determined that the
children needed a legally secure permanent placement which cannot be achieved without a
grant of permanent custody to FCCS. The trial court based its determination on its finding
that neither appellant nor Mother had substantially remedied the causes for removal of
their children and that no potential relatives were available for placement or custody of the
children. The trial court further found that the children were bonded with each other and
lived together in the same foster home since either their removal or birth. The trial court
also noted the foster parents hoped to adopt all the children, as well as the children’s two
younger siblings.6 The foregoing findings are all supported by credible evidence in the
record. Therefore, credible evidence in the record supported the trial court’s conclusions
that appellant was unable to meet the basic needs of the children, that the children need a
legally secure permanent placement as required by statute, and such a placement cannot
be achieved without a grant of permanent custody to FCCS.
{¶ 46} Finally, under R.C. 2151.414(D)(1)(e), the trial court was required to consider
any applicable factors set forth in R.C. 2151.414(E)(7) through (11). The trial court found
that none of the factors were applicable in this case, and the evidence in the record supports
this finding.
{¶ 47} In sum, the record demonstrates that the trial court properly reviewed and
weighed the evidence pertaining to all factors relevant to determining whether granting
permanent custody to FCCS was in the children’s best interest. Upon our review of all of
the evidence presented at trial in this case, we determine that there is competent and
credible evidence to support the trial court’s conclusion that a permanent commitment is
in the children’s best interest and in accordance with the law. The trial court’s decision is
not against the manifest weight of evidence, and appellant’s second assignment of error is
overruled.
6 The two younger children are not part of this case.
Nos. 22AP-197, 22AP-198, 22AP-199, and 22AP-200 16
V. Conclusion
{¶ 48} Accordingly, based on all the foregoing, we overrule both assignments of
error presented by appellant L.D.R., and we affirm the decision of the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch granting
permanent custody of Le.R., Leg.R., L.R. and Lo.R. to FCCS.
Judgments affirmed.
DORRIAN and LELAND, JJ., concur.