In re R.P. , 2021 Ohio 4065 ( 2021 )

[Cite as In re R.P., 2021-Ohio-4065.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In re: :
R.P., Jr., : No. 20AP-538
(C.P.C. No. 17JU-2629)
(R.P., :
(REGULAR CALENDAR)
Appellant). :
In re: :
L.P., : No. 20AP-539
(C.P.C. No. 17JU-2631)
(R.P., :
(REGULAR CALENDAR)
Appellant). :
In re: :
W.P., : No. 20AP-540
(C.P.C. No. 17JU-6096)
(R.P., :
(REGULAR CALENDAR)
Appellant). :
In re: :
W.P., : No. 20AP-542
(C.P.C. No. 17JU-6096)
(S.S., :
(REGULAR CALENDAR)
Appellant). :
In re: :
R.P., Jr., : No. 20AP-543
(C.P.C. No. 17JU-2629)
(S.S., :
(REGULAR CALENDAR)
Appellant). :
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 2
In re: :
L.P., : No. 20AP-544
(C.P.C. No. 17JU-2631)
(S.S., :
(REGULAR CALENDAR)
Appellant). :
D E C I S I O N
Rendered on November 16, 2021
On brief: Steven Thomas D. Potts, for appellee Franklin
County Children Services.
On brief: Allison L. Harrison Law, LLC, and Todd A.
Fichtenberg, for appellant R.P.
On brief: Anzelmo Law, and James A. Anzelmo, for
appellant S.S.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
KLATT, J.
{¶ 1} Appellants, R.P. ("father") and S.S. ("mother"), appeal a judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
that granted permanent custody of the parents' children to appellee, Franklin County
Children Services ("FCCS"). For the following reasons, we affirm that judgment.
{¶ 2} Mother and father are the parents of L.P., born August 24, 2013; W.P., born
April 24, 2015; and R.P., born June 17, 2016. FCCS initially removed L.P. and W.P. from
their parents' custody in June 2015 because it was concerned that mother was selling the
children for $25 each. Mother completed her case plan requirements, including parenting
classes, a drug and alcohol assessment, and an anger management course. FCCS returned
L.P. and W.P. to mother in November 2015.
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 3
{¶ 3} On November 29, 2016, L.P. was admitted to Nationwide Children's Hospital
and diagnosed with a subdermal hematoma, a broken arm, and bruising and abrasions all
over her body. At first, mother reported that L.P. sustained these injuries while falling
down a set of stairs two times in a two-day period. Mother, however, later admitted that
she and father caused the injuries.
{¶ 4} On December 1, 2016, FCCS filed a complaint alleging that L.P. was an
abused, neglected, and dependent child. FCCS filed a second complaint alleging that R.P.
was a dependent child because he resided in the same household with mother, father, and
L.P. FCCS did not file any complaint with regard to W.P. because he resided with his
maternal grandmother. A magistrate granted FCCS a temporary order of custody for L.P.
and R.P. on December 5, 2016.
{¶ 5} The trial court dismissed the December 1, 2016 complaints because
dispositional hearings did not occur within 90 days of the filing of the complaints as
required by R.C. 2151.35(B)(1). FCCS refiled both complaints on February 28, 2017. In
relevant part, the complaints stated:
The family has a history with [FCCS] dating back to 2013 with
neglect substantiated in June 2015. On November 29, 2016,
[FCCS] received a referral on [L.P.] It was reported that [L.P.]
was taken to * * * Nationwide Children's Hospital [ ] with
concerns for an arm and head injury. The initial report stated
that [L.P.] fell down the stairs on Friday, November 25, 2016,
and was throwing up. * * * [T]hen on Saturday, November 26,
2016, [L.P.] fell down the stairs again at [a friend's] home. * * *
It was reported that EMS was called to the parent's home on
Monday, November 28, 2016. It was reported by parents that
EMS stated that [L.P.] was fine and parents needed to keep an
eye on her. * * * It is reported that [L.P.] has bruising and
abrasions and scars all over her body. [L.P.] also has [a]
subdermal hematoma and it is confirmed that both bone [sic]
where [sic] broken which was consistent with her falling down
the stairs. On November 30, 2016, the intake caseworker met
with mother. Mother continuously stated that [L.P.] received
her injuries because she fell down the stairs. * * * On
December 1, 2016, mother admitted to the hospital staff that
she and the father * * * caused the injuries to [L.P.]. Mother
reported that she told [L.P.] to go to the corner and when [L.P]
resisted and wouldn't stand up, father came over and placed
[L.P.] in the corner. Mother stated that father may have
squeezed [L.P.]'s arm while placing her in the corner[,] leaving
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 4
the bruise on her arm. * * * It was later learned that mother
beats on [L.P.] and leaves bruises and has voiced not wanting
her children. * * * After being evaluated by the agency nurse,
[R.P.] is showing symptoms of being delayed in fine motor
skills and language. [R.P.] was also not able to sit up until seven
(7) months due to weak back muscles.
(Feb. 28, 2017 Compls.) On March 1, 2017, a magistrate again granted FCCS a temporary
order of custody of L.P. and R.P.
{¶ 6} On May 4, 2017, FCCS filed a complaint alleging W.P. was a neglected and
dependent child. In relevant part, the complaint stated:
[W.P.] is currently residing with [his] maternal grandmother
* * * by arrangement between mother and [the maternal
grandmother]. On March 29, 2017, [a] [ ] caseworker arrived
at [the maternal grandmother]'s home for an unannounced
home visit. [The] [ ] caseworker observed various unknown
adults sleeping on the couch and [the maternal grandmother]
appeared upset that [the] caseworker came to [the] home
unannounced. [The] [ ] caseworker reportedly heard someone
upstairs tell [the maternal grandmother] "not to let [the]
caseworker upstairs," raising concern as to what may be
occurring in the home. The agency has concerns regarding [the
maternal grandmother]'s ability to obtain medical care and
ensure that [W.P.]'s basic and safety needs are met. [The
maternal grandmother] also has a criminal history of drug
related charges. * * * Mother is drug screened through
American Court Services [ ] and has been negative for all
substances. * * * Father is not drug screening consistently and
continues to test positive for cocaine and marijuana. Parents
are unemployed and do not have stable housing.
(May 4, 2017 Compl.) A magistrate granted FCCS a temporary order of custody of W.P.
{¶ 7} On May 11, 2017, a magistrate held a combined adjudicatory and
dispositional hearing regarding L.P. and R.P. At that hearing, mother and father admitted
to the second cause of action in L.P.'s complaint, which alleged L.P. was an abused child.
FCCS then requested that the trial court dismiss the remaining causes of action. Mother
and father also admitted to the sole cause of action in R.P's complaint, which alleged that
R.P. was a dependent child.
{¶ 8} In a judgment dated May 16, 2017, the trial court adopted the magistrate's
decision finding L.P. to be an abused child as defined in R.C. 2151.031(C), dismissing the
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 5
remaining abuse, neglect, and dependency causes of action as requested by FCCS, and
committing L.P. to FCCS' temporary custody. In a second judgment, also dated May 16,
2017, the trial court adopted the magistrate's decision finding R.P. to be a dependent child
as defined in R.C. 2151.04(C) and committing him to FCCS' temporary custody. Both
judgments approved and adopted the same case plan, and made that case plan an order of
the court.
{¶ 9} On July 24, 2017, a magistrate held a combined adjudicatory and
dispositional hearing regarding W.P. At that hearing, mother and father admitted to the
second cause of action in W.P.'s complaint, which alleged that W.P. was a dependent child.
FCCS then requested that the trial court dismiss the neglect cause of action.
{¶ 10} In a judgment dated July 31, 2017, the trial court adopted the magistrate's
decision dismissing the neglect cause of action, finding W.P. to be a dependent child as
defined in R.C. 2151.04(C), and committing W.P. to FCCS' temporary custody.
Additionally, the judgment approved and adopted an amended case plan, to which FCCS
had added W.P.
{¶ 11} On December 4, 2017, the trial court issued judgments extending FCCS'
temporary custody of L.P. and R.P. for six months. The trial court entered judgments
granting a second six-month extension of temporary custody of L.P. and R.P. on June 25,
2018, and it entered a judgment granting the first six-month extension of temporary
custody of W.P. on June 26, 2018. Additionally, in the three June judgments, the trial court
approved and adopted an amended case plan, and made that case plan an order of the court.
{¶ 12} On October 19, 2018, FCCS moved for permanent custody of all three
children. The trial court held a hearing on FCCS' motion on September 15 and 16, 2020.
Mother, the foster mother, the caseworker assigned to the family, and the guardian ad litem
for the children testified at that hearing.
{¶ 13} In judgments dated October 23, 2020, the trial court granted FCCS
permanent custody of L.P., W.P., and R.P. The trial court found by clear and convincing
evidence that, pursuant to R.C. 2151.414(B)(1), the children had been in FCCS' custody for
12 months out of a consecutive 22-month period and awarding FCCS permanent custody
was in the children's best interests.
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 6
{¶ 14} Father now appeals the October 23, 2020 judgments, and he assigns the
following errors:
1. The trial court's finding that FCCS's motion for permanent
custody was supported by clear and convincing evidence is
against the manifest weight of evidence.
2. The trial court abused its discretion by denying Appellant-
Father R.P.'s motion for a continuance.
{¶ 15} Mother now appeals the same judgments, and she assigns the following
errors:
[1.] The trial court plainly erred by admitting the testimony
and report of the guardian ad litem.
[2.] Children services failed to establish, by clear and
convincing evidence, that it should be given permanent custody
of S.[S].'s children.
{¶ 16} We will begin by addressing father's second assignment of error, by which he
argues that the trial court erred in failing to grant him a one-day continuance of the hearing
on the permanent custody motions. We disagree.
{¶ 17} Immediately before the hearing began, father's attorney requested that the
trial court continue the proceedings for one day so his client could attend. Father's attorney
explained that father was not at court because there were "some maintenance issues he had
to deal with at home; he couldn't leave that unattended." (Sept. 15, 2020 Tr. at 9.) FCCS
opposed a continuance. However, to allow father's participation in the trial, FCCS agreed
that it would not close its case at the end of the first day of the hearing, even if all other
available FCCS witnesses had testified, so father could testify on the second day of the
hearing. In the end, the trial court denied father's motion, stating, "Unspecified
maintenance at a residence is not [a very good reason for a continuance] when you look at
how long these children have been in custody and our need to start this case." Id. at 13.
Nevertheless, the trial court agreed to accommodate father by adjourning court early if all
available FCCS witnesses had testified so father could appear and give testimony on the
second day of the hearing. Father did not attend the second day of the hearing.
{¶ 18} A juvenile court has broad discretion to grant or deny a continuance. In re
J.P., 10th Dist. No. 18AP-834, 2019-Ohio-1619, ¶ 32. In evaluating a request for a
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 7
continuance, a court considers: (1) the length of the delay requested; (2) whether the
parties have requested and received other continuances; (3) the inconvenience to the
parties, witnesses, opposing counsel, and the court; (4) whether the reason for the
requested delay is legitimate or dilatory, purposeful, or contrived; (5) whether the movant
contributed to the circumstances giving rise to the request for a continuance; and (6) any
and all other relevant factors. Id. To obtain a continuance requested on the day of a
hearing, a movant must show good cause for the continuance. Loc.R. 2 of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
{¶ 19} An appellate court will not reverse a denial of a continuance in a permanent
custody case unless the juvenile court abused its discretion. In re A.U., 10th Dist. No. 20AP-
594, 2021-Ohio-2658, ¶ 11. In reviewing a juvenile court's decision to deny a continuance,
an appellate court conducts a balancing test, weighing any potential prejudice to the
movant against the juvenile court's ability to control its own docket and promptly and
efficiently affect justice. In re D.E., 10th Dist. No. 20AP-83, 2021-Ohio-524, ¶ 42.
{¶ 20} Here, while father only asked for a one-day continuance, the trial court had
already continued the hearing five times. FCCS filed its motions for permanent custody on
October 19, 2018. When father made his request for a sixth continuance on the
September 15, 2020 hearing date, almost two years had elapsed since FCCS had moved for
permanent custody of the children.
{¶ 21} R.C. 2151.414(A)(2) mandates that a hearing on a motion for permanent
custody occur no later than 120 days after a children services agency files a motion for
permanent custody. The juvenile court may, "for good cause shown," continue the hearing
"for a reasonable period of time beyond the [120]-day deadline." Id. However, R.C.
2151.414(A)(2) limits that "reasonable period of time" for continuances by requiring the
juvenile court to "issue an order that grants, denies, or otherwise disposes of the motion for
permanent custody, and journalize the order, not later than [200] days after the agency
files the motion" for permanent custody. Id.{¶ 22} Given the statutory deadlines, a juvenile court does not abuse its discretion
in refusing to continue a hearing on a motion for permanent custody where that motion has
been pending for over 200 days. See In re A.U. at ¶ 12; In re J.P. at ¶ 34; In re K.J., 10th
Dist. No. 17AP-457, 2018-Ohio-471, ¶ 20. Here, 695 days passed between the filing of the
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 8
motions for permanent custody and the hearing date. That lengthy delay justified denial of
any additional continuance.
{¶ 23} Father claims that he had legitimate reasons for his continuance request.
However, the reason he gave on the hearing date—home maintenance—did not constitute
good cause for his absence. Father was supposedly repairing rotten bathroom flooring that
had been a problem throughout the year mother lived in her apartment. Father did not
explain why the repairs had to occur on the day he was due in court. On appeal, father
offers additional reasons, but because father did not present these reasons to the trial court,
we will not consider them. See In re A.L., 10th Dist. No. 15AP-1040, 2016-Ohio-3189, ¶ 21
(holding that a party who fails to raise a basis for a continuance in the trial court waives the
right to raise it on appeal).
{¶ 24} Given the extensive delay that had already occurred and the weakness of
father's excuse for his absence, we conclude that the trial court did not abuse its discretion
in denying his motion for a continuance. Accordingly, we overrule father's second
assignment of error.
{¶ 25} We next turn to mother's first assignment of error, by which she argues that
the trial court erred by admitting the testimony and report of the guardian ad litem. We
disagree.
{¶ 26} Initially, we address mother's argument that the trial court erred in admitting
into evidence the report of the guardian ad litem. In compliance with former Sup.R.
48(F)(1),1 the guardian ad litem filed a written report with the trial court seven days before
the hearing, on September 8, 2020. However, neither the parents nor FCCS moved to make
the report an exhibit at the hearing. The trial court, therefore, never admitted the report
into evidence. Consequently, the trial court did not err with regard to the report as alleged
in mother's assignment of error.
{¶ 27} We, thus, turn to the argument that the trial court erred in admitting into
evidence the guardian ad litem's testimony. Mother contends that the guardian spent
inadequate time interviewing and interacting with the children, interviewing her, and
1 The Supreme Court of Ohio recently amended the Rules of Superintendence governing guardians ad
litem. The new rules, now found at Sup.R. 48 through 48.07, became effective on January 1, 2021. Sup.R.
99(RRR). As the former rules were in effect during the pendency of the trial court proceedings, we cite to
and apply those rules throughout this decision.
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 9
observing her with the children. According to mother, the trial court should have
disregarded the guardian ad litem's testimony once the deficiencies in his performance
became apparent.
{¶ 28} Mother did not object to the guardian ad litem's testimony in the trial court,
so we limit our review to whether the trial court committed plain error in allowing the
guardian to testify. See In re H.M.S., 10th Dist. No. 05AP-613, 2006-Ohio-701, ¶ 6 ("A
party who fails to object to testimony at trial waives error on appeal relative to that
testimony unless there was plain error."). To constitute plain error, the error must be
obvious on the record and so fundamental that it should have been apparent to the trial
court without objection. In re W.W.E., 10th Dist. No. 15AP-167, 2016-Ohio-4552, ¶ 80. In
civil cases, "the plain error doctrine is not favored and may be applied only in the extremely
rare case involving exceptional circumstances where error * * * seriously affects the basic
fairness, integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself." Goldfuss v. Davidson, 79 Ohio St.3d
116 (1997), syllabus. Because appellate courts accord wide latitude to a trial court's
consideration of the evidence when determining parental rights, plain error is particularly
difficult to establish in cases where parental rights are at issue. In re D.E., 10th Dist. No.
20AP-83, 2021-Ohio-524, at ¶ 76.
{¶ 29} A juvenile court must appoint a guardian ad litem to protect the interest of a
child in any proceeding for permanent custody held pursuant to R.C. 2151.414. R.C.
2151.281(B). The guardian ad litem must "perform whatever functions are necessary to
protect the best interest of the child, including, but not limited to, investigation, mediation,
monitoring court proceedings, and monitoring the services provided the child" by a
children services agency that has custody of the child, "and shall file any motions and other
court papers that are in the best interest of the child." R.C. 2151.281(I). If the guardian ad
litem "fail[s] to faithfully discharge the guardian ad litem's duties," the court must discharge
the guardian ad litem and appoint another guardian ad litem. R.C. 2151.281(D).
{¶ 30} Here, mother does not contend that the trial court erred in failing to
discharge the guardian ad litem under R.C. 2151.281(D). Rather, she argues that the trial
court should have excluded the guardian ad litem's testimony because the guardian did not
meet the minimum performance requirements for guardians ad litem. At the time of trial
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 10
court proceedings, former Sup.R. 48(D) specifically delineated those performance
requirements. In relevant part, former Sup.R. 48(D) stated:
In order to provide the court with relevant information and an
informed recommendation regarding the child's best interest,
a guardian ad litem shall perform, at a minimum, the following
responsibilities stated in this division, unless impracticable or
inadvisable to do so:
***
(13) A guardian ad litem shall make reasonable efforts to
become informed about the facts of the case and to contact all
parties. In order to provide the court with relevant information
and an informed recommendation as to the child's best
interest, a guardian ad litem shall, at a minimum, do the
following, unless impracticable or inadvisable because of the
age of the child or the specific circumstances of a particular
case:
(a) Meet with and interview the child and observe the child
with each parent, foster parent, guardian or physical custodian
and conduct at least one interview with the child where none of
these individuals is present;
(b) Visit the child at his or her residence in accordance with
any standards established by the court in which the guardian
ad litem is appointed;
(c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and
other significant individuals who may have relevant knowledge
regarding the issues of the case;
(e) Review pleadings and other relevant court documents in
the case in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative
records pertaining to the child and, if appropriate, to the child's
family or to other parties in the case;
(g) Interview school personnel, medical and mental health
providers, child protective services workers and relevant court
personnel and obtain copies of relevant records;
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 11
(h) Recommend that the court order psychological
evaluations, mental health and/or substance abuse
assessments, or other evaluations or tests of the parties as the
guardian ad litem deems necessary or helpful to the court; and
(i) Perform any other investigation necessary to make an
informed recommendation regarding the best interest of the
child.
{¶ 31} The Rules of Superintendence are internal housekeeping rules that create no
substantive individual rights. In re D.E. at ¶ 77; In re S.S., 10th Dist. No. 17AP-681, 2018-
Ohio-1249, ¶ 11. Because Sup.R. 48 is a general guideline that lacks the force of statutory
law, noncompliance with Sup.R. 48(D) is not grounds for the automatic exclusion of a
guardian ad litem's report, testimony, or recommendation. In re K.W., 4th Dist. No. 17CA7,
2018-Ohio-1933, ¶ 100. Rather, the trial court may exercise its discretion to consider that
evidence. In re N.B., 8th Dist. No. 105028, 2017-Ohio-1376, ¶ 26; In re D.S., 5th Dist. No.
15 CA 30, 2016-Ohio-79, ¶ 42; Corey v. Corey, 2d Dist. No. 2013-CA-73, 2014-Ohio-3258,
¶ 9. As the trier of fact, the trial court may take into account any deficiencies in the guardian
ad litem's performance when assigning weight to the guardian's testimony and opinions.
See In re K.W. at ¶ 102 ("The trial court, as the fact-finder, is permitted to assign weight to
the guardian ad litem's testimony and recommendation and could choose to believe or
disbelieve it."); In re T.C., 6th Dist. No. L-15-1106, 2015-Ohio-3665, ¶ 23 ("[T]he trial court,
as trier of fact, is permitted to assign weight to the guardian ad litem's testimony and
recommendation and to consider it in the context of all the evidence before the court.").
{¶ 32} Here, the trial court appointed the guardian ad litem, Guylynn Cook, after
allowing the previous guardian to withdraw. Cook received his appointment on June 9,
2020, only three months before the hearing on the motion for permanent custody. At the
hearing, Cook testified that upon his appointment, he reviewed the case dockets and read
the complaints, the prior guardian ad litems' reports, the semi-annual administrative
reviews, and mother's psychological assessment. Cook also attempted to contact mother
by telephone, but her telephone was disconnected. On September 8, 2020, Cook visited
the foster home, spoke with the foster parents, and interviewed the children. The next day,
Cook observed the final ten minutes of a visit between mother and the children. Father did
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 12
not attend that visit. Cook then drove mother to her apartment, where he met and spoke
with father and viewed the apartment.
{¶ 33} Mother criticizes the guardian ad litem for spending too little time
interviewing and interacting with the children, interviewing her, and observing her with the
children. As the guardian ad litem recognized, his investigation would have benefited from
further meetings and discussions with the children and viewing more visits between mother
and the children. Despite the shortcomings in the guardian ad litem's investigation, the
trial court admitted and considered the guardian's testimony. The trial court did not abuse
its discretion, much less plainly err, in so doing. The trial court could factor into its
consideration the extent of the guardian ad litem's field work when weighing the guardian's
testimony and opinion.
{¶ 34} Mother urges this court to follow Nolan v. Nolan, 4th Dist. No. 11CA3444,
2012-Ohio-3736. In that case, the Fourth District Court of Appeals concluded that the trial
court abused its discretion in considering a guardian ad litem's testimony and report. Id.
at ¶ 26. However, the lapses of the guardian ad litem in Nolan, which included the failure
to interview a man the child would be living with, exceeded any omissions made by
guardian ad litem in this case. Additionally, the Fourth District explicitly limited its
decision in Nolan to the "specific facts of [the] case" and stated that it did "not intend to
create a bright-line rule regarding the minimum standards of Sup.R. 48(D)(13)." Id. at ¶ 27.
Because of that restrictive language, courts have refused to give Nolan precedential value.
In re K.W. at ¶ 104; In re S.S., 10th Dist. No. 17AP-681, 2018-Ohio-1249, at ¶ 12; Miller v.
Miller, 4th Dist. No. 14CA6, 2014-Ohio-5127, ¶ 21. We, accordingly, do not follow Nolan in
this case.
{¶ 35} In sum, we conclude that the trial court did not err as alleged in mother's first
assignment of error. We thus overrule that assignment of error.
{¶ 36} Father's first and mother's second assignments of error challenge the trial
court's decision to grant FCCS permanent custody of L.P., W.P., and R.P. An appellate court
will not reverse a juvenile court's determination in a permanent custody case unless it is
against the manifest weight of the evidence. In re Andy-Jones, 10th Dist. No. 03AP-1167,
2004-Ohio-3312, ¶ 28. " 'Weight of the evidence concerns "the inclination of the greater
amount of credible evidence, offered at trial, to support one side of the issue rather than the
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 13
other. * * * Weight is not a question of mathematics, but depends on [the evidence's] effect
in inducing belief." ' " (Emphasis omitted.) Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting
Black's Law Dictionary 1594 (6th Ed.1990). Thus, in reviewing a judgment under the
manifest weight standard, an appellate court weighs the evidence and all reasonable
inferences, considers the credibility of witnesses, and determines whether in resolving the
conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest
miscarriage of justice that the judgment must be reversed, and a new trial ordered. Id. at
¶ 20.
{¶ 37} Additionally, in conducting a manifest weight review, an appellate court must
make every reasonable presumption in favor of the trial court's judgment and findings of
fact. Id. at ¶ 21. If the evidence is susceptible to more than one construction, an appellate
court must interpret it in the manner most consistent with the judgment. Id. Moreover,
" '[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 proceedings and the impact the court's determination will have on
the lives of the parties concerned.' " In re H.H., 10th Dist. No. 19AP-158, 2019-Ohio-4953,
¶ 49, quoting In re W.D., 10th Dist. No. 09AP-589, 2009-Ohio-6903, ¶ 34.
{¶ 38} A juvenile court may grant permanent custody of a child to a public children
services agency "if the court determines * * *, by clear and convincing evidence, that it is in
the best interest of the child to grant permanent custody of the child to the agency * * * and
that any of the following apply":
(a) * * * [T]he 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.
(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 * * *.
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 14
(e) The child or another child in the custody of the parent or
parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or another
state.
R.C. 2151.414(B)(1)(a) through (e).
{¶ 39} Once the juvenile court decides that one of the circumstances in R.C.
2151.414(B)(1) applies, the court turns to R.C. 2151.414(D) to decide if a grant of permanent
custody is in the child's best interest. Pursuant to R.C. 2151.414(D)(1), in determining a
child's best interest, the juvenile 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.
R.C. 2151.414(D)(1)(a) through (e).
{¶ 40} Here, the trial court found that the children met the criteria of R.C.
2151.414(B)(1)(d), as they had been in FCCS' temporary custody for 12 months of a
consecutive 22-month period when FCCS moved for permanent custody. After
consideration of the R.C. 2151.414(D)(1) factors, the trial court concluded that granting
FCCS permanent custody of L.P., W.P., and R.P. was in the children's best interests. On
appeal, the parents do not contest the finding that the children had been in FCCS' custody
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 15
for 12 out of 22 months. Rather, the parents only argue that the trial court erred in
concluding that it was in the children's best interest to grant FCCS permanent custody.
{¶ 41} Under the first best-interest factor, the trial court must consider "[t]he
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." R.C. 2151.414(D)(1)(a). In its decision, the trial court considered the
parents' interaction with the children during their scheduled weekly visits. The FCCS
caseworker testified that mother regularly attended visits with the children. Father,
however, "d[id]n't visit much at all," missing up to two months of visits at a time. (Sept. 15,
2020 Tr. at 100.) At visits, mother would usually allow L.P. to play on mother's phone and
the younger two children would "run around [and] do their own thing." Id. at 102. The
caseworker opined that L.P. was very bonded with mother. While W.P. "knows mom," he
would get upset with mother for punishing him based on L.P.'s tales of his supposed
misdeeds. Id. at 103. R.P. would tell mother he loved her, but he was always ready to end
the visit when the foster parents arrived. With regard to father, the FCCS caseworker
testified that L.P. was "kind of bonded with" father, W.P. did not "go to[o] close [to] dad
much," and R.P. was not "very bonded with" father. Id. at 104.
{¶ 42} The trial court also recounted three incidents instigated by father that
occurred during visits. In the first, father slammed W.P. onto a plastic couch because W.P.
had run from him and told him "no." When the FCCS caseworker told father that his
actions were not appropriate, father replied that W.P. was his son and he could do what he
wanted with W.P. In the second incident, father was playfully hitting the children with a
bag of popcorn while attending a visit at the library. A security guard asked father to stop.
Father became very angry and started yelling at the security guard. Mother joined in. The
situation escalated to the point that the library banned both mother and father from
returning. In the final incident, father picked R.P. up and tried to put him in a garbage can.
R.P. was scared and told his father to put him down, but father ignored him. The FCCS
caseworker had to step in and force father to stop.
{¶ 43} According to the foster mother, when L.P. arrived at the foster parents' home
in December 2016, L.P. was very angry, and she would scream, cry, kick, and hit. At the
same time, L.P. was fearful of other people, especially men, and would only trust the foster
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 16
mother. W.P. also was fearful and aggressive when he first joined the foster family. L.P.
and W.P. receive both behavioral health therapy and play therapy once a week.
{¶ 44} In-person visits with mother and father were suspended for approximately
three months due to COVID-19. When in-person visits resumed, the children reacted badly.
L.P. began having more explosive temper tantrums, taking other peoples' belongings, and
wetting the bed. W.P. started have nightly nightmares and became more aggressive with
other children. R.P. began scratching his face and hitting his head.
{¶ 45} Father contends that the evidence does not establish that the resumption of
in-person visits caused the children's negative behaviors. We disagree. The foster mother
testified that these behaviors began on the very day of the first in-person visit, June 18,
2020. Also, logically, L.P. and W.P. might associate their parents with a period in their lives
where they felt unsafe and frightened, thus resulting in them acting out upon seeing their
parents after an absence.
{¶ 46} Finally, the trial court also considered the children's relationship with their
foster parents. The guardian ad litem described the children's relationship with their foster
parents as very loving. The foster parents maintain a regular routine for the children,
including time for school, play, sleep, food, and family activities. The foster parents are
interested in adopting all three children.
{¶ 47} Father criticizes the foster parents because they do not bathe the children
daily. However, as the foster mother explained, the children "have very sensitive skin so
we've found that it's better for us to wipe them down and not necessarily full-on bathe them
each day." (Sept. 15, 2020 Tr. at 190-91.)
{¶ 48} Under the second best-interest factor, the trial court must consider "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." R.C. 2151.414(D)(1)(b). This section
"unambiguously gives the trial court the choice of considering the child's wishes directly
from the child or through the guardian ad litem." In re C.F., 113 Ohio St.3d 73, 2007-Ohio-
1104, ¶ 55. Here, as neither parent requested an in-camera interview of the children, the
trial court looked to the guardian ad litem to determine the wishes of the children.
{¶ 49} The guardian ad litem testified that the children were too immature to
understand the concepts of permanency or adoption. When the guardian spoke with the
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 17
children, he asked L.P. and W.P. how many mommies and daddies they had "to get a better
understanding as to what they underst[oo]d." (Sept. 15, 2020 Tr. at 214.) L.P. said she had
two mommies and two daddies, referring to both her biological and foster parents. W.P.
said he only had one mommy and one daddy: his foster parents. The guardian ad litem
also asked the children how they felt about their foster home and both L.P. and W.P. said
that they wanted to stay in the foster home. While the guardian ad litem believed "that's
what they wanted," he also believed "they really d[i]dn't understand the ramifications of
that." Id. at 228. In other words, due to the children's immaturity, their expressed
preference to live with the foster parents did not amount to a wish for permanent
placements with the foster parents. R.P. was too young to make any answer to the guardian
ad litem's questions.
{¶ 50} Father complains that the guardian ad litem's testimony that L.P. and W.P.
wanted to stay in their foster home conflicts with his testimony that L.P. and W.P. were too
immature to express their wishes. A conflict exists, however, only if L.P.'s and W.P.'s desire
to live with their foster parents is interpretated as their wishes as to permanent placement.
As we explained above, however, that is an incorrect interpretation because neither L.P. nor
W.P. understand permanency.
{¶ 51} Father also attacks the guardian ad litem for not adequately interviewing L.P.
During the hearing, father's attorney asked the guardian ad litem, "Did you follow up and
* * * ask [L.P.] if she wanted to live with mom or dad * * *?" Id. at 229. The guardian ad
litem answered, "I was not able to go that far with this particular case." Id. Father assumes
from the guardian ad litem's answer that a lack of sufficient time with the children
prevented the guardian from determining the children's wishes as to permanent placement.
The evidence, however, is that the children's immaturity—not any deficiency on the
guardian ad litem's part—precluded the children from expressing their wishes. The
guardian ad litem "was not able to go that far" because the children lacked the capacity to
understand permanency. Consequently, the trial court did not err in relying on the
guardian ad litem's testimony in considering the R.C. 2151.414(D)(1)(b) factor.
{¶ 52} Under the third best-interest factor, the trial court must consider "[t]he
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
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 18
or more months of a consecutive twenty-two-month period." R.C. 2151.414(D)(1)(c). The
trial court found that FCCS had temporary custody of L.P. and R.P. since December 5, 2016.
FCCS had temporary custody of W.P. since May 11, 2017. FCCS moved for permanent
custody of the children on October 19, 2018. At that time, all three children had been in
FCCS' temporary custody for more than 12 months of a consecutive 22-month period.
Neither parent contests the trial court's findings under the R.C. 2151.414(D)(1)(c) factor on
appeal.
{¶ 53} Under the fourth best-interest factor, the trial court must consider "[t]he
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." R.C.
2151.414(D)(1)(d). In considering this factor, the trial court examined whether mother
and/or father could provide a legally secure permanent placement for the children. The
trial court first looked to whether the parents had acquired housing that was safe and
appropriate for the children.
{¶ 54} Father points to the apartment mother had obtained as evidence of parents'
ability to provide housing for the children. However, father's position in that apartment is
not secure. Mother initially testified that she had kicked father out of the apartment two
weeks prior to the hearing because he was "not willing to help [her] get the kids back."
(Sept. 15, 2020 Tr. at 32.) Later in her testimony, mother indicated that father was still
living with her, but he would have to go if she received custody of the children and he was
"not willing to step up and do anything for [his] kids." (Sept. 16, 2020 Tr. at 221-22.)
{¶ 55} Moreover, the trial court determined that the apartment was neither safe nor
appropriate for the children. The apartment had only one bedroom and one bathroom,
which the trial court deemed too small for the parents and three children. Because a prior
tenant's cats had ruined the flooring, mother had removed the flooring in all the rooms so
only the raw plywood subfloor remained. Father had begun replacing the bathroom
flooring, but the other floors stayed bare. According to the FCCS caseworker and the
guardian ad litem, the apartment was dirty and disorganized, and dog feces littered the
floor. A dog urinated on the floor in front of the caseworker while the caseworker was
viewing the apartment. Although the apartment had working utilities, the refrigerator had
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 19
stopped functioning a month before the hearing. Additionally, the outside door to the
apartment lacked a lock.
{¶ 56} The trial court also examined evidence of the parents' income. Father told
the FCCS caseworker that he worked in construction, but he explained that he was paid in
cash and could offer no proof of his employment or income. Mother is not employed, but
she receives monthly Social Security disability benefits in the amount of $783 and monthly
SNAP benefits in the amount of $220.2 After calculating mother's monthly expenses, the
trial court determined that mother's income is barely enough for her own expenses.
{¶ 57} Finally, the trial court considered the parents' efforts to complete the case
plan objectives related to their parenting skills, mental health, and substance abuse. Both
parents completed parenting classes. Mother underwent a psychological assessment, but
she did not follow up with the recommended drug and alcohol assessment. Father did not
undergo either a psychological or drug and alcohol assessment. Neither parent attended or
completed anger management classes.
{¶ 58} Both parents had to complete random drug screens. The amended case plan
warned the parents that any missed screens would be considered positive. Mother missed
342 of 367 screens. She did not screen at all in 2018, 2019, or 2020. Father missed 246 of
254 screens.
{¶ 59} As mother points out, she is taking medication for her mental health
conditions, which include bipolar disorder, depression, and anxiety. However, in the final
judgment, the trial court stated:
Mother's demeanor as a witness and at counsel table during
trial makes clear that her mental health issues are unresolved
and in need of further treatment. She left the courtroom
angrily three times during the trial after hearing testimony that
upset[ ] her. She became angry when questioned about how
she would get the children to their medical appointments. The
second day of trial the court observed her plugged into some
electronics with earphones[,] pushing buttons and typing, not
listening to the activities of the courtroom. She also closed her
eyes and appeared to be sleeping or resting, not participating
with her counsel.
(Oct. 23, 2020 Decision & Jgmt. Entry at 19.)
2 SNAP is the Supplemental Nutritional Assistance Program.
Nos. 20AP-538, 20AP-539, 20AP-540, 20AP-542, 20AP-543, and 20AP-544 20
{¶ 60} Based on the foregoing evidence, the trial court concluded that it could not
safely return the children to either parent, and consequently, it could not achieve a legally
secure permanent placement for the children without a grant of permanent custody to
FCCS. The manifest weight of the evidence supports this conclusion.
{¶ 61} Under the fifth best-interest factor, the trial court must consider "[w]hether
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)(e). The trial court found R.C. 2151.414(E)(11) applied to
father. That factor applies if:
[t]he parent has had parental rights involuntarily terminated
with respect to a sibling of the child pursuant to [R.C. 2151.414,
2151.353, or 2151.415] * * *, and the parent has failed to provide
clear and convincing evidence to prove that, notwithstanding
the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health,
welfare, and safety of the child.
R.C. 2151.414(E)(11). Father has lost custody of three other children, including one child
that was permanently committed to FCCS' custody. Father does not contest the trial court's
conclusion that R.C. 2151.414(E)(11) applies to him.
{¶ 62} Upon review of all the best-interest factors, the trial court found that granting
permanent custody to FCCS was in the children's best interests. Although mother and
father love their children, neither has fully addressed the problems, particularly the anger
management issues, that resulted in the removal of the children. Neither parent has the
ability or resources to adequately care for the children. Accordingly, after consideration of
the totality of the evidence, we find that the manifest weight of the evidence supports the
trial court's best-interest finding. We thus overrule father's first assignment of error and
mother's second assignment of error.
{¶ 63} For the foregoing reasons, we overrule mother's two assignments of error, we
overrule father's two assignments of error, and we affirm the judgment of the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
DORRIAN, P.J., and MENTEL, J., concur.