In re A.J. , 2024 Ohio 3291 ( 2024 )

[Cite as In re A.J., 2024-Ohio-3291.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: A.J., R.J., Jr. & D.J. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Andrew J. King, J.
:
:
: Case No. CT2024-0063
: CT2024-0064
: CT2024-0065
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Juvenile Division, Case
Nos. 22130076, 22130077, & 22130078
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 28, 2024
APPEARANCES:
For Mother For MCACPS
RICHARD D. HIXSON MUSKINGUM COUNTY PROSECUTOR
3808 James Court, Suite 2 27 North Fifth Street
Zanesville, OH 43701 Zanesville, OH 43701
For Father Guardian Ad Litem
ADAM JOHNSON SARAH WOLSKE
5599 Levi Kramer Boulevard 505 Mt. Vernon Road, Suite 300
Canal Winchester, OH43110 Newark, OH 43055
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 2
Gwin, P.J.
{¶1} Appellant-mother K. J. [“Mother”] appeals the April 1, 2024 Judgment Entry
of the Muskingum County Court of Common Pleas, Juvenile Division that terminated her
parental rights with respect to her minor children, A.J.1, R.J. Jr. 2, and D.J.3 and granted
permanent custody of the children to appellee, Muskingum County Adult and Child
Protective Services (hereinafter “MCACPS”). Appellee MCACPS did not file a brief in this
appeal.
Facts and Procedural History
{¶2} K.J. is the natural mother of A.J. (b. 05-30-2012), R.J. Jr. (b. 02-12-2015),
and D.J. (b. 01-01-2019). On or about April 27, 2021, a complaint filed by MCACPS
alleged neglect under R.C. 2151.03(A)(2) and dependency under R.C. 2151.04(C).
Accompanying the complaint was a Motion for Ex-Parte Orders, filed by MCACPS,
requesting emergency removal of the children from parents' custody. The motion was
granted and the matter was scheduled for an ex- parte hearing on the following day.
{¶3} An ex-parte hearing was held on April 28, 2021, at which only Mother
appeared. The children were placed in the temporary custody of the agency at that time.
A case plan was approved and adopted by the trial court indicating mental health,
substance abuse, housing, income, and parenting objectives.
{¶4} On or about July 21, 2021, MCACPS filed an updated Comprehensive
Assessment and Case Plan in which both Mother and Father4 of the children were
identified as having significant mental health, substance abuse, housing, income and
1 5th Dist. No. CT2024-0063 / Muskingum # 22130076
2 5th Dist. No. CT2024-0064 / Muskingum # 22130077
3 5th Dist. No. CT2024-0065 / Muskingum # 22130078
4 Father is not a party to this appeal
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 3
parenting issues, which significantly and adversely affected their ability to properly parent
and protect their children and provide their children with a safe and sober home. No party
objected to the case plan and the same was approved and adopted by the Court.
{¶5} On July 22, 2021, the combined adjudicatory and dispositional hearing was
held. Father did not appear and no counsel appeared on his behalf. Mother appeared
with counsel. The trial judge found the children neglected and dependent as alleged in
the complaint and temporary custody was continued with the agency.
{¶6} Non-oral review hearings were conducted on April 26, 2022, October 25,
2022, and April 10, 2023.
{¶7} On June 6, 2023, Mother filed a Motion for Unsupervised Visitation. This
motion was heard on August 7, 2023 and was denied by the trial judge.
{¶8} MCACPS filed a Motion for Permanent Custody on September 28, 2023.
The motion was scheduled for hearing on January 16, 2024, but was continued to March
12, 2024 to allow Father to be appointed counsel. The motion was heard on that date.
The permanent custody hearing
{¶9} The ongoing caseworker for MCACPS, Mother, and Father testified during
the hearing.
{¶10} Brianna Hickenbottom, the ongoing caseworker testified the original
complaint in this case was filed on April 27, 2021. T. at 6.5 Hickenbottom further testified
that MCACPS has had uninterrupted temporary custody of the three children since that
date. Id. at 7. Accordingly, at the time the motion for permanent custody was filed on
5 References are to the transcript of the Permanent Custody Hearing held March 12, 2024
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 4
September 28, 2023, the children had been in the custody of MCACPS for more than
twelve months out of a twenty-two-month consecutive period. Id.
{¶11} Mother was asked to complete a mental health / drug assessment, have
adequate housing and employment. T. at 8. Mother completed the assessment. Id.
Mother completed intensive outpatient treatment in 2021. Id.; T. at 66. After a relapse,
Mother successfully completed inpatient treatment at the Schultz Mansion through
Cedar Ridge. T. at 8; 66. After this, Mother was recommended to complete intensive
outpatient treatment once again, which she again completed successfully through
Cedar Ridge. Id. at 66 – 67. She was also recommended to complete groups at Cedar
Ridge, which she also successfully completed. Id. Ms. Hickenbottom testified that
Mother has successfully completed her drug treatment. Id.
{¶12} Mother was prescribed Suboxone as part of her treatment. T. at 9. In
Mother’s drug screens the Suboxone would not always appear at the times that she
should have been taking the drug. T. at 9. Hickenbottom randomly checked Mother’s
prescription pill bottle, along with the prescription pill bottle for the Xanax that Mother was
prescribed. T. at 9-10. At times, the number of pills in the bottle would not be the correct
number based upon Mother’s prescribed dosage. Id. at 10. Mother would tell
Hickenbottom that she either lost the pills or flushed them down the toilet. Id. Mother
completed drug screening through the Cedar Ridge program. Id. at 68. Mother did not
complete the drug screening through MCACPS. Id. at 68-69. Mother missed ten drug
screenings before she stopped appearing for drug screens in January 2024. Id. at 11; 68.
It is the policy of MCACPS to consider missed drug screens as a positive drug screen. T.
at 71; 75.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 5
{¶13} Hickenbottom testified that Mother was evicted from public housing in
December 2023 for non-payment of rent. T. at 13. At the time, Mother was living with a
paramour, C.F. Id. C.F. was asked to complete a drug and alcohol assessment and a
mental health assessment by MCACPS; however, Hickenbottom testified that he did not
want to do that. Id. at 14; 16; 48-49. Mother still resides with C.F. in a one-bedroom
apartment. Id. at 15.
{¶14} Mother does not have a driver’s license or a vehicle, and therefore must rely
on public transportation. T. at 17. Mother is not employed and has no source of income.
Id.
{¶15} Mother visits the children on a weekly basis. T. at 20. The children are
placed in separate foster homes. A.J. is doing well in foster placement. T. at 31. R.J., Jr.
is in a treatment foster home due to severe behavioral problems. Id. at 33. He does not
use the bathroom, throws, and, hits things. Id. He receives treatment and medications
through Nationwide Children’s Hospital. Id. at 35. D.J. is currently in his third foster
placement. T. at 35. He is in counseling and on medication. Id. at 36. D.J. would throw
things at Mother and his siblings during visits. Id. at 37. All three children have behavioral
problems that will need to be closely monitored in the future. T. at 37.
{¶16} Relative placement with up to ten individuals was explored by MCACPS. T.
at 38. The individuals either did not respond when contacted or did not pass the home
studies. Id. at 38-39. No appropriate relative placement has been found by MCACPS. Id.
at 39.
{¶17} Mother testified that she completed in patient treatment at Cedar Ridge and
intensive outpatient treatment through MBH in 2021. T. at 77. She then relapsed and
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 6
completed in patient treatment through Schultz and intensive outpatient treatment through
Cedar Ridge after her completion of the inpatient program. Id. at 77.
{¶18} Mother testified that she has difficulty with transportation and has had
difficulty reaching MCACPS to notify them. T. at 77. Mother calls each morning at 4:30
a.m. Id. at 78. Mother further testified that she is in school full time for the culinary arts.
T. at 79. She attends classes three days a week. Id. at 90. Her estimated graduation date
is 2027. Id. at 80.
{¶19} Mother testified that C.F. did not indicate that he does not want to participate
in the case plan. T. at 82. Rather, he stated he was not going to try to take custody of the
children away from Mother. Id.
{¶20} Mother testified that she graduated from parenting classes. Id. at 84.
{¶21} By Judgment Entry filed April 1, 2024, the trial judge issued his findings of
fact granting permanent custody of the children to MCACPS. Specifically, the trial judge
found that,
The children cannot be placed with either parent within a reasonable
time and should not be placed with either parent; (R.C. 2151.414(B)(1)(a);
based on the findings enumerated in R.C. 2151.414(E)(1) and (2)).
The children have been in the temporary custody of the agency for
more than twelve (12) consecutive months of a twenty-two (22) month
period of time.
Further, the trial judge found that granting permanent custody to
MCACPS was in the best interests of the children.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 7
Assignment of Error
{¶22} Mother raises one Assignment of Error,
{¶23} “I. THE TRIAL COURT'S AWARD OF PERMANENT CUSTODY AND
TERMINATION OF APPELLANT'S PARENTAL RIGHTS WAS UNSUPPORTED BY
CLEAR AND CONVINCING EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
I.
{¶24} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157(1990), quoting Stanley v. Illinois, 405 U.S. 645 (1972). A
parent's interest in the care, custody, and management of his or her child is
“fundamental.” Id.; Santosky v. Kramer, 455 U.S. 745, 753 (1982). The permanent
termination of a parent's rights has been described as, “* * * the family law equivalent to
the death penalty in a criminal case.” In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
Standard of Review
{¶25} The Ohio Supreme Court has recently delineated our standard of review as
follows, “the proper appellate standards of review to apply in cases involving a juvenile
court’s decision under R.C. 2151.414 to award permanent custody of a child and to
terminate parental rights are the sufficiency-of-the-evidence and/or manifest-weight-of-
the-evidence standards, as appropriate depending on the nature of the arguments that
are presented by the parties.” In re: Z.C., 2023-Ohio-4703, ¶18.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 8
{¶26} Mother challenges both the sufficiency and the manifest weight of the
evidence.
Sufficiency of the Evidence
{¶27} Whether the evidence is legally sufficient to sustain a verdict is a question
of law. In re: Z.C., 2023-Ohio-4703, ¶13. “When applying a sufficiency-of-the-evidence
standard, a court of appeals should affirm a trial court when ‘the evidence is legally
sufficient to support the jury verdict as a matter of law.’” Bryan-Wollman v. Domonko, 115
Ohio St.3d 291, 2007-Ohio-4918, 874 N.E.2d 1198, ¶ 3, quoting Thompkins at 386, 678
N.E.2d 541, quoting Black’s at 1433.” Id.{¶28} The Ohio Supreme Court stated that where the degree of proof required to
sustain an issue must be “clear and convincing,” means “[t]he measures or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as to the
allegations sought to be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required beyond a reasonable
doubt as in criminal cases. It does not mean clear and unequivocal.” In re Estate of
Haynes, 25 Ohio St.3d 101, 103-104 (1986); Accord, In re: Z.C., 2023-Ohio-4703, ¶7. A
court of appeals will examine the record to determine whether the trier of facts had
sufficient evidence before it by which the court could have formed a firm belief or
conviction that the essential statutory elements for a termination of parental rights have
been established. 2023-Ohio-4703, ¶8; In re Adkins, 2006-Ohio-431, ¶17 (5th Dist.).
Manifest weight of the evidence
{¶29} The term “‘manifest weight of the evidence’. . . relates to persuasion.”
Eastley v. Volkman, 2012-Ohio-2179, ¶19. It “concerns ‘the inclination of the greater
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 9
amount of credible evidence, offered in a trial, to support one side of the issue rather than
the other.’” (Emphasis deleted.) State v. Thompkins, 78 Ohio St.3d 380, 387(1997),
superseded by constitutional amendment on other grounds as stated by State v. Smith,
80 Ohio St.3d 89, 102 at n.4 (1997); State v. Martin, 2022-Ohio-4175, ¶ 26.
{¶30} Weight of the evidence addresses the evidence's effect of inducing belief.
Thompkins, at 386-387; State v. Williams, 2003-Ohio-4396, ¶83. When a court of appeals
reverses a judgment of a trial court on the basis that the decision is against the weight of
the evidence, the appellate court sits as a “thirteenth juror” and disagrees with the fact
finder’s resolution of the conflicting testimony. State v. Jordan, 2023-Ohio-3800;
Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42(1982) (quotation marks
omitted); State v. Wilson, 2007-Ohio-2202, ¶25, citing Thompkins.
{¶31} In weighing the evidence, the court of appeals must always be mindful of
the presumption in favor of the finder of fact. Eastley, 2012-Ohio-2179 at ¶ 21; In re Z.C.,
2023-Ohio-4703, ¶ 14. “The underlying rationale of giving deference to the findings of the
trial court rests with the knowledge that the [trier of fact] is best able to view the witnesses
and observe their demeanor, gestures and voice inflections, and use these observations
in weighing the credibility of the proffered testimony.” Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶32} When there is conflicting testimony presented at trial, a defendant is not
entitled to a reversal on manifest weight grounds merely because inconsistent evidence
was presented. “‘If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is consistent with the verdict
and judgment, most favorable to sustaining the verdict and judgment.’” Seasons Coal Co.,
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 10
Inc at fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, §603, at 191-192 (1978); In re Z.C.,
2023-Ohio-4703, ¶14. In Cross v. Ledford, 161 Ohio St. 469, 477(1954), the Supreme
Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added).
{¶33} The interplay between the presumption of correctness and the ability of an
appellate court to reverse a verdict based on the manifest weight of the evidence has
been stated as follows, “’Judgments supported by some competent, credible evidence
going to all the essential elements of the case will not be reversed by a reviewing court
as being against the manifest weight of the evidence.’” Seasons Coal Co., 10 Ohio St.3d
at 80, quoting C.E. Morris Co. v. Foley Construction Co., 54 Ohio St.2d 279, 280 - 281.
See, also, In re: Z.C., 2023-Ohio- 4703, ¶15; Frankenmuth Mut. Ins. Co. v. Selz, 6 Ohio
St.3d 169, 172 (1983); In re Sekulich, 65 Ohio St.2d 13, 16 (1981).
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 11
{¶34} If a court of appeals determines that a judgment is against the manifest
weight of the evidence, the proper remedy is a remand for a new trial. 2023-Ohio-4703,
¶16, citing Eastley at ¶ 22. However, “[r]eversal on the manifest weight of the evidence
and remand for a new trial are not to be taken lightly.” Eastley v. Volkman, 2012-Ohio-
2179, ¶ 31; In re: Z.C., 2023-Ohio- 4703, ¶16.
Requirements for Permanent Custody Awards
{¶35} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶36} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not 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, or has not 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 if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 12
another state, and 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;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) 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, or 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 and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶37} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
judge must apply when ruling on a motion for permanent custody. In practice, the trial
judge will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
Temporary Custody for at least 12 out of a consecutive 22-month period-
R.C. 2151.414(B)(1)(d).
{¶38} The “12 of 22” provisions set forth in R.C. 2151.413(D)(1) and R.C.
2151.414(B)(1)(d) balance the importance of reuniting a child with the child’s parents
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 13
against the importance of a speedy resolution of the custody of a child. In re C.W., 2004-
Ohio-6411, ¶22. Through the “12 of 22” provisions in the permanent-custody statutes, the
legislature provides parents with 12 months to work toward reunification before an agency
can institute a permanent-custody action asserting R.C. 2151.414(B)(1)(d) grounds. Id.{¶39} “Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22-month period.” In re: C.W., 2004-Ohio-6411 at paragraph one of the
syllabus. When calculating this time period, the Court in C.W. cautioned, “the time that
passes between the filing of a motion for permanent custody and the permanent-custody
hearing does not count toward the 12-month period set forth in R.C. 2151.414(B)(1)(d).”
2004-Ohio-6411, ¶26.
{¶40} R.C. 2151.414(B)(1)(e) states that, “[f]or the purposes of division (B)(1) of
this section, a child shall be considered to have entered the temporary custody of an
agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of
the Revised Code or the date that is sixty days after the removal of the child from home.”
{¶41} In the case at bar, Mother concedes that the children had been in the
temporary custody of the MCACPS for over twelve months of a consecutive 22-month
period at the time the motion for permanent custody was filed.
{¶42} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are
alternative findings, each is independently sufficient to use as a basis to grant the motion
for permanent custody. In re Daltoni, 2007-Ohio-5805 (5th Dist.); In re: K.C., 2024-Ohio-
2081, ¶45 (10th Dist.). This finding alone, in conjunction with a best interest finding, is
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 14
sufficient to support the grant of permanent custody. In re Calhoun, 2008-Ohio-5458 (5th
Dist.) In re: K.C., 2024-Ohio-2081, ¶45 (10th Dist.).
{¶43} Because Mother has not challenged the twelve of twenty-two-month finding
as to the children, we would only need to address the best interest of the children pursuant
to R.C. 2151.414(D). Id. However, the trial judge also found that R.C. 2151.414(B)(1)(a)
was applicable. Even if we consider this argument, the trial judge did not err in
determining the children cannot be placed with Mother at this time or within a reasonable
time.
Parental Placement within a Reasonable Time– R.C. 2151.414(B)(1)(a)
{¶44} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151.414(E). The statute also indicates that if the court makes a finding
under R.C. 2151.414(E)(1) - (15), the court shall determine the children cannot or should
not be placed with the parent. A trial court may base its decision that a child cannot be
placed with a parent within a reasonable time or should not be placed with a parent upon
the existence of any one of the R.C. 2151.414(E) factors. The existence of one factor
alone will support a finding that the child cannot be placed with the parent within a
reasonable time. See In re William S., 75 Ohio St.3d 95 (1996); In re Hurlow, 1997 WL
701328 (4th Dist. Sept. 21, 1998); In re Butcher, 1991 WL 62145 (4th Dist. Apr. 10, 1991).
{¶45} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining
whether a child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Specifically, Section (E) provides, in pertinent part,
as follows:
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 15
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child’s
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
(1) 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 changing parental conduct to allow them to resume and
maintain parental duties.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 16
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code;
…
(16) Any other factor the court considers relevant.
{¶46} As set forth above, the trial judge’s findings are based upon competent
credible evidence. The record includes the recommendation of the guardian ad litem for
the children, and the testimony of the witnesses at trial. The trial judge was in the best
position to determine the credibility of the witnesses.
{¶47} The judge found that MCACPS had made reasonable efforts to prevent the
removal, to eliminate the continued removal, or to make it possible for the children to
return home safely to Mother’s home. The record supports the judge’s finding that Mother
has not shown consistent sustained progress to have the children returned to her custody.
{¶48} It does not appear that Mother has been able to apply any behavioral
changes that she has attempted to learn. Despite offering numerous services, Mother
was unable or unwilling to mitigate the concerns that led to the children’s removal. As set
forth in our Facts and Procedural History, supra, we find there was sufficient and
substantial competent evidence Mother failed to remedy the problems which initially
caused the removal of the children from her home.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 17
{¶49} In the case of In re: Summerfield, 2005-Ohio-5523 (5th Dist.), this Court
found where, despite marginal compliance with some aspects of the case plan, the exact
problems that led to the initial removal remained in existence, a court does not err in
finding the child cannot be placed with the parent within a reasonable time. Accord, In re:
K.C., 2024-Ohio-2081, ¶56 (10th Dist.).
{¶50} The evidence demonstrated the very little successful efforts Mother had
made on the case plan. On that point, the evidence demonstrates that any improvement
that Mother has made in her life is tentative and, perhaps, temporary, and that she is at
risk of relapse. The trial court found that Mother is not able to be a successful parent to
the children.
{¶51} We find there is competent and credible evidence, which, if believed, would
convince the average mind that the children cannot be placed with Mother within a
reasonable time or should not be placed with Mother.
The Best Interest of the Child
{¶52} 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, ¶ 26.
{¶53} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child’s best interests would be served by granting the permanent
custody motion. These factors include but are not limited to: (1) the interrelationship of
the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)
the child’s need for a legally secure placement and whether such a placement can be
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 18
achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)
to (11) apply.
{¶54} 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.
{¶55} No one element is given greater weight or heightened significance. In re
C.F., 2007-Ohio-1104. 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. In
re: A.M., 2020-Ohio-5102, ¶33.
{¶56} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. We have frequently noted, “[t]he
discretion which the juvenile court enjoys in determining whether an order of permanent
custody is in the best interest of a child should be accorded the utmost respect, given the
nature of the proceeding and the impact the court’s determination will have on the lives
of the parties concerned.” In re Mauzy Children, 2000 WL 1700073 (5th Dist. Nov. 13,
2000), citing in re Awkal, 85 Ohio App.3d 309, 316 (8th Dist. 1994).
{¶57} In the case at bar, MCACPS investigated potential placement with relatives
and found none suitable. Further, the evidence establishes that R.J., Jr. is presently in a
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 19
treatment foster home, and all of the children have behavioral issues. R.J., Jr.’s violent
tendencies make it difficult for him to be placed with his siblings or be successfully
returned to Mother. Considering the many obstacles in Mother’s life, the trial judge found
the children’s need for a legally secure placement cannot be achieved without permanent
custody. Nothing in the record before us demonstrates that more time or a return of
custody to the Mother will in any way benefit the children. This case has been ongoing
for over three years.
{¶58} In the present case, the trial judge concluded the children's need for legally
secure placement could not be achieved without awarding permanent custody to
MCACPS. Upon review of the record, the record supports the trial judge's finding that
granting the motion for permanent custody is in the children’s best interest.
{¶59} In short, the juvenile judge’s judgment entry demonstrates that the judge
satisfied his statutory duty to consider the best interest factors set out in R.C.
2151.414(D)(1)(a) through (e).
Conclusion
{¶60} For these reasons, we find that the trial judge correctly found that the
children had been in the temporary custody of MCACPS for over twelve months of a
consecutive 22-month period.
{¶61} We further find the trial judge’s determination that Mother had failed to
remedy the issues that caused the initial removal, and, therefore, the children could not
be placed with her within a reasonable time or should not be placed with her was based
upon competent credible evidence and is not against the manifest weight or sufficiency
of the evidence.
Muskingum County, Case No. CT2024-0063, CT2024-0064, & CT2024-0065 20
{¶62} We further find that the trial court’s decision that permanent custody to
MCACPS was in the children’s best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
{¶63} Because the evidence in the record supports the trial judge’s judgment, we
overrule Appellant-Mother’s assignment of error, and affirm the decision of the
Muskingum County Court of Common Pleas, Juvenile Division.
By Gwin, P.J.,
Hoffman, J., and
King, J., concur