In re D.B. , 2024 Ohio 1872 ( 2024 )

[Cite as In re D.B., 2024-Ohio-1872.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.B. : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
: Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 2023CA00163
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2022JCV00242
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: May 15, 2024
APPEARANCES:
For Appellant Father: For Appellee SCDJFS
RICHARD D. HIXSON BRANDON J. WALTENBAUGH
3808 James Court, Suite 2 402-2nd St. SE
Zanesville, OH 43701 Canton, OH 44702
Guardian Ad Litem:
ROBIN MINOR
110 Central Plaza S., Ste. 450
Canton, OH 44702
[Cite as In re D.B., 2024-Ohio-1872.]
Delaney, P.J.
{¶1} Appellant Father appeals from the November 14, 2023 Judgment Entry of
the Stark County Court of Common Pleas, Family Court Division, awarding permanent
custody of the minor child D.B. to appellee Stark County Department of Job and Family
Services (“Agency”).
{¶2} This case is related to, but not consolidated with, 5th Dist. Stark No.
2023CA00162, which is Mother’s appeal from the same Judgment Entry.
FACTS AND PROCEDURAL HISTORY
{¶3} Mother and Father are the natural Parents of D.B. (DOB: 4/30/2014).
Beginning in September 2021, the Agency became “non-court involved” with the family
due to drug abuse and domestic violence concerns. A Safety Plan was developed, but
continued violations led the Agency to file a complaint alleging dependency and neglect
of the child on March 8, 2022. Emergency temporary custody was awarded to the
Agency, guardian ad litem (G.A.L.) was appointed, and an Initial Case Plan was filed with
the goal of reunification.
{¶4} D.B. was placed into relative kinship care with Maternal Cousin on March
5, 2022, and has remained in that placement for the pendency of the case. On March
10, 2022, a Proposed Legal Custodian’s Statement of Understanding was filed for
Maternal Cousin.
{¶5} In April 2022, Mother filed a motion to complete her parenting evaluation at
Melymbrosia instead of Lighthouse Family Center.
{¶6} In May 2022, an adjudication hearing was held; Mother and Father both
appeared with counsel. Upon conferring with counsel, Mother stipulated to a finding of
[Cite as In re D.B., 2024-Ohio-1872.]
dependency. Testimony was taken as to Father and the trial court entered a finding of
dependency. The trial court also denied Mother’s motion to complete the parenting
evaluation at Melymbrosia because the Agency made other concessions regarding the
evaluation. Temporary custody was granted to the Agency.
{¶7} In September 2022, a case plan review packet was filed and a disposition
review hearing was held. The child remained in the Agency’s temporary custody and the
trial court found compelling reasons to preclude a request for permanent custody.
{¶8} An amended case plan was filed on November 19, 2022, with a
recommendation of reunification.
{¶9} On January 30, 2023, the Agency moved for permanent custody.
{¶10} In February 2023, a case plan review packet was filed and a dispositional
review hearing was held. The trial court noted minimal progress was made in some areas
and found no compelling reasons to preclude a request for permanent custody. An
amended case plan was filed modifying visitation.
{¶11} On April 19, 2023, Father filed a motion for in-camera interview of D.B.
{¶12} On April 27, 2023, the Agency amended its motion for permanent custody
and moved to extend temporary custody until September 8, 2023. Mother and Father
stipulated to the extension of temporary custody; the trial court granted the extension,
found it was not in D.B.’s best interest to reunify at that time, and found the Agency made
reasonable efforts to reunite the family. However, service had not been completed and
concerns leading to removal had not been alleviated.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶13} On September 13, 2023, the Agency filed an [amended] motion for
permanent custody. Father filed a motion for an in-camera interview of D.B. which the
trial court granted and interviewed D.B. on November 13, 2023.
{¶14} The G.A.L. filed reports on April 1, 2022; September 1, 2022; January 25,
2023; April 20, 2023; July 31, 2023; and November 9, 2023.
{¶15} A permanent custody trial took place on November 9, 2023. The following
evidence is adduced from the record of the hearing.
Caseworker’s assessment: Parents failed to remedy behaviors and concerns
{¶16} The family’s ongoing Caseworker has been involved with the family since
March 8, 2022. Caseworker met with the family at court, at their house, at the Agency,
and in parking lots after Goodwill Parenting. She called Parents at least once a month to
answer questions and to discuss services, compliance, and drug screens.
{¶17} The original issues resulting in Agency involvement included domestic
violence between Parents, substance abuse issues, and concerns for D.B.’s safety.
Caseworker testified D.B. has been in the temporary custody of the Agency since
disposition on May 4, 2022, or more than 12 months of a consecutive 22-month period.
Caseworker testified Mother and Father have not been consistent with compliance
throughout regular review hearings and D.B. needs and deserves permanency.
{¶18} Caseworker detailed the case plan developed to protect D.B., including a
parenting assessment for Mother at Lighthouse Family Center and a parenting
assessment for Father at Melymbrosia, with both Parents required to complete all
recommendations. Parents were ordered to complete a CommQuest assessment for
[Cite as In re D.B., 2024-Ohio-1872.]
drug and alcohol use, follow all recommendations, and maintain sobriety. Finally, the
case plan required Parents to maintain stable housing and employment.
{¶19} The Agency paid for all costs of these services and had regular meetings
with Parents to assess their progress and to encourage further work on the case plan.
{¶20} Mother missed some appointments but eventually completed the parenting
assessment at Lighthouse with Dr. Thomas. Mother’s diagnosis included Major
Depressive Order--Recurrent; Dependent Personality Disorder; Other Specified Anxiety
Disorder; Alcohol Use Disorder—Severe; Stimulant Use—Moderate; and ruled out
Bipolar II Disorder. The parenting assessment recommended the following for Mother:
comprehensive medical health services, including psychiatric services and counseling;
take prescribed medications as directed; participate in drug and alcohol treatment with
two 12-step meetings per week; successfully complete Goodwill Parenting after a period
of sobriety; find employment independent of Father; and demonstrate the ability to protect
herself. The case plan required Mother to follow and complete these recommendations.
{¶21} Caseworker feared for Mother’s safety because Father was controlling.
Father told Caseworker he controls Mother: he controls her employment and income
because she works with him, he controls her cell phone, and he carries Mother’s
insurance card, driver’s license, and keys. Caseworker found it difficult to work with each
parent independently because Mother seems to be dependent on Father. Caseworker
testified the concerns of domestic violence and concerns for Mother’s safety continue.
{¶22} Mother was referred to individual counseling and case management
services at Phoenix Rising. After a CommQuest evaluation, Mother was referred to
Phoenix Rising for sobriety issues. Mother attended counseling with some missed
[Cite as In re D.B., 2024-Ohio-1872.]
appointments, but Caseworker testified she saw no changes in Mother’s behavior overall
and the same concerns persisted.
Temporary extension terminated by relapses
{¶23} Parents did gain extra time to work on the plan. After filing the first motion
for permanent custody, the Agency amended the motion and extended time for both
parents to work on the case plan. Mother was referred to Goodwill Parenting but did not
successfully complete the program. Caseworker testified Goodwill Parenting does not
recommended reunification.
{¶24} The extension of temporary custody was based in part on a period of
negative drug screens. From November 2022 until February 2023, both parents were
referred to CommQuest for drug screens. After a period of noncompliance, Caseworker
addressed the issue again; after a period of negative screens, Mother was allowed to
enroll in Goodwill Parenting and temporary custody was extended.
{¶25} Temporary custody was extended because parents did make some
progress on the case plan; they both had a period of sobriety; the home was structurally
appropriate; and both were employed by Father’s business. This interlude resulted in the
referrals to Goodwill Parenting.
{¶26} In August 2023, however, both parents tested positive for cocaine, and were
encouraged to reconnect with treatment and do a 12-step program. In September, both
parents again tested positive for cocaine, and Mother tested positive in October. Father
denied problems with substance abuse and there has been no change. Mother did not
reconnect with services after her relapse and is not attending 12-step meetings.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶27} Father completed a parenting assessment at Melymbrosia and a report was
submitted. The following recommendations were made: maintain sobriety, seek mental
health treatment to specifically address control and domineering issues, and domestic
violence treatment to address coping skills. These recommendations were part of the
case plan and Father was required to follow all recommendations.
{¶28} Caseworker testified Father has complied with monthly mental health
treatment at Phoenix Rising and has sometimes acknowledged issues, but has not
changed his behavior. Caseworker testified about an incident in a different county
involving domestic violence and substance abuse, resulting in criminal charges for
Mother. Neither parent notified Caseworker of the incident.
{¶29} Father’s parenting assessment determined that if he could maintain sobriety
and complete all aspects of his case plan, D.B. could potentially be returned to his
custody. However, after the referral to Goodwill Parenting Father was refused admittance
due to a positive test for cocaine. Father did not complete case plan services and
although he did make some progress, there has been no change in his behavior and the
original safety concerns remain.
{¶30} Caseworker summarized that the family has been involved with the Agency
for six months non-court and 18 months court involvement, but there is no significant
change in the parents’ risks or behaviors.
{¶31} Mother was required to make meaningful changes to reduce the risks that
led to Agency involvement with the family. Mother was required to maintain complete
and total sobriety to alleviate drug abuse concerns; and to successfully engage with
counseling, learn coping skills, take prescribed medications, and follow all
[Cite as In re D.B., 2024-Ohio-1872.]
recommendations to alleviate mental health concerns. Mother was required to attend a
12-step program but only completed two meetings throughout the pendency of the case.
{¶32} Father did not report his drug use to the Agency or to his counselor and did
not acknowledge his drug use even after testing positive for cocaine two months in a row.
Father does not feel he has a problem with drug use and blamed Mother for his drug use.
{¶33} Caseworker testified parents are generally present and engaged at
visitation with no major safety concerns.
Dr. Thomas: Reunification not recommended
{¶34} Dr. Aimee Thomas completed Mother’s parenting assessment and testified
about her contact with Mother. Dr. Thomas found it unusual that Father sat with Mother
in the waiting area of Thomas’ office in possession of all of Mother’s paperwork, including
her driver’s license and insurance card. Mother disclosed multiple instances of domestic
violence to Thomas in which Father was the perpetrator; D.B. witnessed many of these
incidents. Mother said Father blamed her for the violence and Mother blamed herself.
Mother agreed the violence increased with substance abuse. Based upon Mother’s
disclosures, Dr. Thomas has grave concerns for her safety and her failure to protect
herself and D.B.
{¶35} Dr. Thomas noted Mother has an older child with a different father. When
Father threatened to kill the older child’s father, Mother’s parenting time with that child
was reduced to once a month with restrictions. Dr. Thomas testified Mother has low self-
esteem, low energy, and chemical dependency, and is entrenched in an unhealthy
relationship. Mother is not treating her depression and did not take medication as
prescribed. Mother’s diagnoses included major depressive disorder-recurrent,
[Cite as In re D.B., 2024-Ohio-1872.]
dependent personality disorder, other specified anxiety disorder, rule out bipolar disorder,
alcohol use disorder-severe, and stimulant use disorder-moderate. Dr. Thomas
recommended that Mother not regain custody of D.B. if she remains in a relationship with
Father unless Father successfully completes all aspects of his own case plan.
Specifically, Thomas recommended Mother does not regain custody until both parents
demonstrate an ability to abstain from all mood-altering substances for at least 9 months
outside a controlled environment.
Goodwill Parenting: Failure to remedy concerns
{¶36} The Goodwill Skills Training Program Supervisor testified about the parents’
referral to and progress in the Goodwill Parenting Program. Mother had consistent
attendance, only missing once and tardy twice. Mother’s individual goals were to address
domestic violence and substance abuse, but none of Mother’s goals adequately
addressed those concerns. Mother tested positive for cocaine several times and was
encouraged to re-evaluate her goals, but did not do so. Mother fails to recognize her
triggers to prevent relapse and has no plan to protect herself and not use. Mother did not
successfully complete the parenting program, is actively involved in a domestic violence
relationship, did not demonstrate learning or change from the program, and received a
certificate of non-compliance.
{¶37} Mother’s supervised visits with D.B. were problematic because she did not
take an active role, had inappropriate conversations with D.B., and caused stress to the
child. Goodwill Parenting does not recommend reunification of D.B. with Mother. Mother
did ask for assistance several times and assistance was provided, but Mother failed to
meet either of her goals.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶38} Father was referred for an intake assessment at Goodwill Parenting, but
was not accepted into the program due to a positive test for cocaine. Father did not
accept responsibility for his cocaine use, claimed Mother forced him to use, and did not
acknowledge domestic violence and controlling behaviors.
Parents’ witnesses: Some progress made
{¶39} Mother’s Counselor from Phoenix Rising testified that Mother has worked
with her bi-weekly for over a year, addressing self-esteem, abstaining from substance
abuse, conscious reactions, and calming skills. Counselor testified Mother has made
progress but does not know Mother’s mental health diagnoses and was only vaguely
aware of the reasons for D.B.’s removal. Counselor was not surprised by the history of
drug abuse and domestic violence, but did not recall specifics about Mother’s relationship
with Father.
{¶40} Father’s Counselor from Phoenix Rising testified Father was consistent in
his attendance from October 2021 through 2022. Counselor met with Caseworker and
was aware of Father’s domestic violence and drug abuse issues. Counselor worked with
Father on accountability and testified that Father did take accountability for some of these
issues. Counselor did acknowledge Father’s relapse on cocaine and noted it was a
concern because Father was not receptive to substance abuse treatment.
{¶41} Father’s Case Manager at Phoenix Rising testified as a witness on his
behalf, noting she met with Father several times a week and Mother was usually present
also. Case Manager said the home was appropriate and in her opinion the parents were
responding to treatment, were cooperative, and engaged. Case Manager did not witness
any troubling interactions between the two.
[Cite as In re D.B., 2024-Ohio-1872.]
D.B. remains in relative placement
{¶42} Upon his removal on March 6, 2022, D.B. was placed with Maternal Cousin
and remains in her care. Caseworker testified D.B. loves Maternal Cousin, her partner,
and her child, who is like a brother to him. D.B. feels safe and secure in the placement
and is bonded with everyone in the home. Maternal Cousin is open to adoption.
{¶43} Caseworker testified D.B. loves Mother and Father, but does not feel safe
and secure with them. There have been issues at visitation including parents whispering
to D.B. and making him uncomfortable. Father has sometimes provoked upsetting and
negative responses from D.B., who worries about the safety of Mother and himself.
Caseworker and the G.A.L. testified any harm caused by termination of parental rights
would be outweighed by the benefits of safety and permanency.
Trial court’s in-camera interview of D.B.
{¶44} The trial court conducted an in-camera interview of the child in which he
expressed love for his cousin and her family. The child was open and honest, and
talkative. He loves his parents very much but is concerned for his safety if he returns
home. D.B. is aware of how to hide and call 911 if he is scared; however, the last time
he wanted to call 911, Mother took his phone away because Father has been “arrested
enough times.”
G.A.L. recommends permanent custody to Agency due to lack of progress
{¶45} On November 9, 2023, the G.A.L. filed her final report noting concerns with
Parents’ failure to make progress on the case plan. The G.A.L. cited Parents’ drug use,
failure to take responsibility for actions leading to D.B.’s removal, violence in the
[Cite as In re D.B., 2024-Ohio-1872.]
relationship, mental health issues, and the child’s expressed desire to remain in relative
placement due to safety concerns with Parents.
{¶46} By Judgment Entry dated November 14, 2023, the trial court granted the
Agency’s motion for permanent custody of D.B. Both parents timely appealed from the
order.
{¶47} Father raises four assignments of error:
ASSIGNMENTS OF ERROR
{¶48} “I. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS IN THE BEST INTERESTS OF D.B. AS SUCH A FINDING WAS
UNSUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.”
{¶49} “II. THE CASE PLAN OF STARK COUNTY JFS WAS NOT GUIDED BY
THE GENERAL PRIORITIES ENUMERATED IN R.C. 2151.412(H).”
{¶50} “III. THE TRIAL COURT’S GRANT OF PERMANENT CUSTODY OF D.B.
TO STARK COUNTY JFS VIOLATED APPELLANT’S CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW.”
{¶51} “IV. FATHER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN TRIAL COUNSEL FAILED TO ASK THE COURT TO CONSIDER GRANTING
LEGAL CUSTODY TO THE AUNT OF D.B. RATHER THAN GRANT PERMANENT
CUSTODY.”
[Cite as In re D.B., 2024-Ohio-1872.]
ANALYSIS
I.
{¶52} In his first assignment of error, Father argues the trial court’s decision that
granting permanent custody to the Agency is in the best interests of D.B. is against the
manifest weight of the evidence and is not supported by clear and convincing evidence.
We disagree.
{¶53} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380, 387,
678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme
Court of Ohio explained the following:
{¶54} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.
It indicates clearly to the jury that the party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their minds, they shall find the greater amount
of credible evidence sustains the issue which is to be established before them. Weight is
not a question of mathematics, but depends on its effect in inducing belief.” (Emphasis
sic.)
[Cite as In re D.B., 2024-Ohio-1872.]
{¶55} In weighing the evidence, however, we are always mindful of the
presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.
Permanent Custody Determination
{¶56} R.C. 2151.414(B)(1)(a) states in relevant part that permanent custody may
be granted if the trial court determines, by clear and convincing evidence, that it is in the
best interest of the child and the child is not abandoned or orphaned * * * 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.
{¶57} Clear and convincing evidence is that evidence “which will provide 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. See, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).
“Where the degree of proof required to sustain an issue must be clear and convincing, a
reviewing court will examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of proof.” Cross at 477, 120
N.E.2d 118.
Best Interests
{¶58} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in
determining the best interest of a child:
(D)(1) In determining the best interest of a child at a hearing
held pursuant to division (A) of this section or for the purposes of
division (A)(4) or (5) of section 2151.353 or division (C) of section
[Cite as In re D.B., 2024-Ohio-1872.]
2151.415 of the Revised Code, the court shall consider all relevant
factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the
child's parents, siblings, relatives, foster caregivers and out-of-home
providers, and any other person who may significantly affect the
child;
(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.
{¶59} The juvenile court has considerable discretion in weighing these factors. In
re D.A., supra at ¶ 47. Although a trial court is required to consider each relevant factor
under R.C. 2151.414(D)(1) in making a determination regarding permanent custody,
“there is not one element that is given greater weight than the others pursuant to the
[Cite as In re D.B., 2024-Ohio-1872.]
statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.
Moreover, “[R.C. 2151.414(D)(1)] requires a weighing of all the relevant factors * * * [and]
requires the court to find the best option for the child * * *.” Id. at ¶ 64.
{¶60} Father argues the trial court abused its discretion in finding permanent
custody to be in the best interest of D.B., arguing the trial court should have placed more
weight on R.C. 2151.414(D)(1)(d). However, no single factor is given greater weight or
heightened significance. Matter of K.B., 5th Dist. Stark No. 2023 CA 00072, 2024-Ohio-
491, ¶ 61, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
{¶61} We review a trial court's best interest determination under R.C. 2151.414(D)
for an abuse of discretion. In re G.B., 5th Dist. Stark No. 2023CA00120, 2023-Ohio-4757,
¶ 11, citing In re D.A., 8th Dist. Cuyahoga No. 95188, 2010-Ohio-5618, ¶ 47. A trial court's
failure to base its decision on a consideration of the best interest of the child constitutes
an abuse of discretion. G.B., supra, citing In re R.S., 8th Dist. Cuyahoga No. 111353,
2022-Ohio-4387, ¶ 45 (Citation omitted). An abuse of discretion connotes more than an
error of law or judgment; it implies the court's attitude is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
R.C. 2151.414(B)(1)(d)
{¶62} In the instant case, the trial court concluded that R.C. 2151.414(B)(1)(d)
applies to D.B., to wit, the child was in the temporary custody of the Agency for twelve or
more months of a consecutive twenty-two-month period. D.B. was found to be dependent
and placed in the temporary custody of the agency on May 4, 2022, over 12 months
before the filing of the first motion for permanent custody on August 2, 2023. We find the
[Cite as In re D.B., 2024-Ohio-1872.]
trial court's judgment on this point is supported by competent, credible evidence.
Schiebel, supra, 55 Ohio St.3d at 74.
{¶63} Father acknowledges the trial court's finding pursuant to R.C.
2151.414(B)(1)(d). This Court has adopted the position that proof of temporary custody
with an agency for twelve or more months of a consecutive twenty-two-month period
alone is sufficient to award permanent custody. Matter of O.M., 5th Dist. Coshocton No.
20CA0017, 2021-Ohio-1310, ¶ 33, citing In the Matter of A.S., V.S., and Z.S., 5th Dist.
Delaware No. 13 CAF 050040, 2013-Ohio-4018. Therefore, a finding that grounds existed
for permanent custody cannot be against the manifest weight of the evidence. In re G.H.,
5th Dist. Licking No. 2022 CA 00026, 2022-Ohio-4496, ¶ 51, citing Matter of L.G., 5th
Dist. Stark No. 2020-CA-00139, 2021-Ohio-743, ¶ 36.
Father's Arguments
{¶64} Father argues the trial court’s finding that permanent custody is in D.B.’s
best interest is against the manifest weight of the evidence, pointing to progress Father
made on his case plan. We note, however, that appellee’s evidence readily established
Father has not remedied the conditions resulting in D.B.’s removal, including substance
abuse and his domestic violence issues with Mother.
{¶65} 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 A.R., 5th Dist. Stark No. 2022CA00148, 2023-Ohio-1359,
[Cite as In re D.B., 2024-Ohio-1872.]
¶ 51, citing In re E.H., 5th Dist. Stark No. 2022CA00007, 2022-Ohio-1682, ¶ 101, internal
citations omitted.
{¶66} The trial court found reunification with Father was not in D.B.’s best interest.
D.B. is doing well in his placement with Maternal Cousin, which may lead to adoption.
Caseworker and the GAL both recommended permanent custody of the child to the
Agency. Any harm caused by severing any bond with Father is outweighed by the benefits
of permanence for child.
{¶67} Father did not make significant progress on his case plan, there was not
reasonable cause to believe Father would be reunified with D.B., and it was not in the
best interest of the child for stability and permanency. Matter of W.W., 5th Dist. Licking
No. 2023 CA 00057, 2023-Ohio-4112, ¶ 30. Upon review, we find sufficient clear and
convincing evidence to support the trial court's decision to grant the Agency's motion for
permanent custody, and do not find any manifest miscarriage of justice. We further find
there is competent, credible evidence to support the juvenile court's decision that it was
in the best interest of the child to be placed in the permanent custody of the Agency, and
that decision is not an abuse of the trial court’s discretion. See, Matter of C.T., 5th Dist.
Stark No. 2023CA00119, 2024-Ohio-212, ¶ 43.
{¶68} Father’s first assignment of error is overruled.
II., III.
{¶69} Father’s second and third assignments of error will be addressed together.
Father argues the case plan was not guided by the general priorities enumerated in R.C.
2151.412(H) and the trial court’s award of permanent custody to the Agency violates his
right to due process. We disagree.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶70} Father argues that R.C. 2151.412(H) creates a statutory preference or
priority that a child be placed with a relative when possible and that therefore Maternal
Cousin should have been granted legal custody of D.B. We addressed and rejected
Father’s argument regarding R.C. 2151.412(H) at length in Matter of K.B., 5th Dist. Stark
No. 2023 CA 00072, 2024-Ohio-491, as follows.
{¶71} R.C. 2151.412(H) states, in relevant part, as follows:
In the agency's development of a case plan and the court's
review of the case plan, the child's health and safety shall be the
paramount concern. The agency and the court shall be guided by the
following general priorities:
***
(2) If both parents of the child have abandoned the child, have
relinquished custody of the child, have become incapable of
supporting or caring for the child even with reasonable assistance,
or have a detrimental effect on the health, safety, and best interest
of the child, the child should be placed in the legal custody of a
suitable member of the child's extended family.
{¶72} R.C. 2151.412(H)(2) instructs a juvenile court to prioritize placing a child in
the legal custody of “a suitable member of the child's extended family” when developing
and reviewing a case plan, but “there is no such requirement in permanent custody
determinations.” In re Tr.T., 8th Dist. No. 106107, 2018-Ohio-2126, ¶ 17, citing In re J.F.,
8th Dist. No. 105504, 2018-Ohio-96, 102 N.E.3d 1264, ¶ 41. See also In re A.S., 4th Dist.
No. 16CA878, 2017-Ohio-1166, ¶ 59; In re J.A., 9th Dist. No. 24134, 2008-Ohio-3635, ¶
[Cite as In re D.B., 2024-Ohio-1872.]
26. Therefore, R.C. 2151.412(H)(2) is inapplicable here, when the question before the
trial court was whether permanent custody was in D.B.’s best interests.
{¶73} Moreover, even if it were applicable, the “priority” established under R.C.
2151.412(H)(2) provides “only discretionary guidance and is not mandatory.” J.A. at ¶ 25.
See also In re Halstead, 7th Dist. No. 04 CO 37, 2005-Ohio-403, ¶ 39. The language of
[R.C. 2151.412(G)] is precatory rather than mandatory. Matter of Rollinson, 5th Dist. Stark
No. 97 CA 00206, 1998 WL 517866; See, In Re: Hiatt, 86 Ohio App.3d 716, 621 N.E.2d
1222 (1983); In Re: Dixon, Lucas App. No. L-91-021 (Nov. 29, 1991), unreported; In Re:
Cundiff, Stark App. No.1995 CA 00102 (Nov. 20, 1995), unreported. Consequently, this
statute does not require the trial court to act in a specific manner, but rather suggests
criteria to be considered in making its decision regarding case plan goals. Dixon, supra.
In re M.O., 4th Dist. Ross No. 10CA3189, 2011-Ohio-2011, ¶ 15.; In re T.P., 3rd Dist.
Hancock No. 5-21-36, 2022-Ohio-2995, ¶ 26. (the language of this statute is precatory,
not mandatory as is shown by the use of the word “should” instead of “shall”).
{¶74} In Schaefer, 2006-Ohio-5513, 111 Ohio St.3d 498, 857 N.E.2d 532, the
Supreme Court of Ohio reviewed a juvenile court's determination that it was in the best
interest of a child to grant permanent custody to a children services agency so the child
could continue in his current foster home. The Supreme Court held that the juvenile court
satisfied its statutory duty by considering the factors set out in R.C. 2151.414(D)(1) and
stated, R.C. 2151.414 “does not make the availability of a placement that would not
require a termination of parental rights an all-controlling factor. The statute does not even
require the court to weigh that factor more heavily than other factors.” Id. at ¶ 64. Indeed,
if an award of permanent custody to the agency is in the child's best interest, as
[Cite as In re D.B., 2024-Ohio-1872.]
determined by application of the factors in R.C. 2151.414(D), a grant of legal custody to
a relative is necessarily not in the child's best interest. In re T.H., 8th Dist. No. 107947,
2019-Ohio-3045, ¶ 13.
{¶75} Ohio appellate courts have similarly rejected arguments that a juvenile court
errs by granting permanent custody of a child to an agency without first determining
whether there is a relative suitable for placement. See In re L.W., 8th Dist. No. 104881,
2017-Ohio-657, ¶ 22; In re O.D.L., 2d Dist. No. 28865, 2021-Ohio-79, ¶ 16 (“awarding
permanent custody to [an agency] without investigating all possible relatives for
placement, standing alone, is not reversible error”); In re A.C.H., 4th Dist. No. 11CA2,
2011-Ohio-5595, ¶ 44 (“the trial court had no duty to first consider placing the children
with appellant's relatives before granting [the agency] permanent custody”). Even when
a potential relative has been identified, “[a] juvenile court need not find, by clear and
convincing evidence, that a relative is an unsuitable placement option prior to granting an
agency's motion for permanent custody.” (Emphasis sic.) In re C.H., 8th Dist. No. 103171,
2016-Ohio-26, ¶ 26, citing In re B.D., 4th Dist. No. 08CA3016, 2008-Ohio-6273, ¶ 29. See
also In re A.B., 12th Dist. No. CA2013-03-024, 2013-Ohio-3405, ¶ 34, citing In re
Patterson, 134 Ohio App.3d 119, 130, 730 N.E.2d 439 (9th Dist.1999). “No preference
exists for family members, other than parents, in custody awards.” C.H. at ¶ 27, citing In
re M.W., 8th Dist. No. 96817, 2011-Ohio-6444, ¶ 27, citing In re Patterson, 1st Dist. No.
C-090311, 2010-Ohio-766, ¶ 16.
{¶76} We also note that neither Maternal Cousin nor any other family member
filed a motion for legal custody of the child in this case.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶77} R.C. 2151.353(A) sets out the types of dispositional orders a trial court may
make after a child is adjudicated an abused, neglected, or dependent child. Pursuant to
R.C. 2151.353(A)(3), the court may “[a]ward legal custody of the child to either parent or
to any other person who, prior to the dispositional hearing, files a motion requesting legal
custody of the child or is identified as a proposed legal custodian in a complaint or motion
filed prior to the dispositional hearing by any party to the proceedings.”
{¶78} Inasmuch as she did not file a motion requesting legal custody of the child
and was not identified as a proposed legal custodian by a party in a complaint or motion
filed prior to the dispositional hearing, the juvenile court lacked authority to award legal
custody to Maternal Cousin. See In re L.B., 9th Dist. No. 20CA0008-M, 2020-Ohio-3834,
¶ 19; Matter of N.S., 10th Dist. Franklin No. 23AP-151, 2023-Ohio-4285, ¶¶ 36-42.
{¶79} As a corollary to his argument regarding legal custody, Father argues the
trial court violated his right to due process in granting permanent custody to the Agency
rather than legal custody to Maternal Cousin.
{¶80} We recognize “parents’ interest in the care, custody, and control of their
children ‘is perhaps the oldest of the fundamental liberty interests recognized by [the
United States Supreme 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). The Ohio Supreme Court has also “long held that parents who are
‘suitable’ have a ‘paramount’ right to the custody of their children.” Id., quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977). (Other citations omitted.) Indeed,
the right to raise one's “child is an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio
St.3d 155, 157, 556 N.E.2d 1169 (1990). However, “the natural rights of a parent are not
[Cite as In re D.B., 2024-Ohio-1872.]
absolute, but are always subject to the ultimate welfare of the child, which is the polestar
or controlling principle to be observed. Ultimately, parental interests are subordinate to
the child's interest when determining the appropriate resolution of a petition to terminate
parental rights.” In re B.C., supra at ¶ 17. (Citations and quotations omitted.)
{¶81} Indeed, “[p]ermanent termination of parental rights has been described as
the family law equivalent of the death penalty in a criminal case. Therefore, parents must
be afforded every procedural and substantive protection the law allows.” Id. at ¶ 19,
(Citations and internal quotations omitted). “In the context of termination of parental rights,
due process requires that the state's procedural safeguards ensure that the termination
proceeding is fundamentally fair.” Id. at ¶ 17.
{¶82} As discussed supra in our analysis of Father’s argument regarding R.C.
2151.412(H), no one filed for legal custody in the instant case, and legal custody to
Maternal Cousin was not a factor in the trial court’s analysis. As discussed throughout our
discussion of Father’s first assignment of error, the Agency made every effort to reunify
the family by assisting Parents in completion of the case plan, but Parents remained
resistant to any meaningful change. In re Z.G.A.A., 5th Dist. Coshocton No. 2023CA0028,
2024-Ohio-326, ¶ 59. The same issues which resulted in the removal of D.B. persisted.
Id.{¶83} We conclude the trial court did not violate Father's right to due process by
granting permanent custody of the child to the Agency.
{¶84} Father’s second and third assignments of error are overruled.
[Cite as In re D.B., 2024-Ohio-1872.]
IV.
{¶85} In his fourth assignment of error, Father argues he received ineffective
assistance of trial counsel because counsel did not move the court to consider legal
custody to Maternal Cousin instead of permanent custody. We disagree.
{¶86} To establish a claim of ineffective assistance of counsel, Father must
demonstrate that counsel's performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A “deficient performance” is one that fell below an objective standard
of reasonableness. Id. at 687–88. To establish prejudice, Father must show that there is
a reasonable possibility that, but for counsel's errors, the result of the proceeding would
have been different. Id. at 694.
{¶87} Father argues trial counsel was ineffective in failing to ask for legal custody
to Maternal Cousin as an alternative for permanent custody to the Agency. As the Agency
points out, any motion to change legal custody would have required a statement of
understanding from Maternal Cousin stating she agreed to take legal custody of D.B. The
evidence showed, however, that Maternal Cousin did not seek legal custody of D.B. and
instead intends to adopt him. We do not discern, and Father does not explain, how a
motion for legal custody would have changed the outcome of the permanent custody
hearing. There was strong evidence supporting the trial court's decision, including
Father’s issues with substance abuse and domestic violence, and his inability or
unwillingness to remedy those issues. The trial court found permanent custody to be in
D.B.’s best interest, a decision we affirmed supra; we have no reason to assume the trial
court would have found legal custody to be an appropriate alternative.
[Cite as In re D.B., 2024-Ohio-1872.]
{¶88} Upon our review of the record, we find no evidence of deficient performance
or prejudice. “The defendant or petitioner has the burden of proof on the issue of
ineffective assistance of counsel, as licensed attorneys in Ohio are presumed to be
competent.” State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). “Trial
counsel is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance.” In re J.J., 10th Dist. Franklin No. 06AP-495, 2006-
Ohio-6151, ¶ 29, citing State v. Sallie, 81 Ohio St.3d 673, 675, 693 N.E.2d 267 (1998).
{¶89} Father’s fourth assignment of error is overruled.
CONCLUSION
{¶90} Father’s four assignments of error are overruled and the judgment of the
Stark County Court of Common Pleas, Family Court Division is affirmed.
By: Delaney, P.J.,
Wise, J. and
Baldwin, J., concur.