In re K.B. , 2024 Ohio 491 ( 2024 )

[Cite as In re K.B., 2024-Ohio-491.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
K.B. Hon. Andrew J. King, J.
D.B. Case Nos. 2023 CA 00072, 00073,
and 00074
M.B
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas,
Juvenile Division, Case Nos.
2021JVC00476, 00477, and 00478
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: February 8, 2024
APPEARANCES:
For Appellee SCJFS For Appellant Father
ALLISON TUESDAY RICHARD D. HIXSON
402 2ND Street, SE 3808 James Court, Suite 2
Canton, Ohio 44702 Zanesville, Ohio 43701
Counsel for Mother Guardian ad Litem
COLE BOND KATHALEEN O’BRIEN
116 Cleveland Avenue, NW, Suite 600 116 Cleveland Avenue, NW, Suite 303
Canton, Ohio 44702 Canton, Ohio 44702
Stark County, Case Nos. 2023 CA 00072, 00073, 00074 2
Wise, J.
{¶1} Appellant-Father E.W. appeals the July 5, 2023, Judgment Entry entered
by the Stark County Court of Common Pleas, Juvenile Division, which terminated his
parental rights, privileges, and responsibilities with respect to his minor children K.B.,
D.B., and M.B., and granted permanent custody of the children to Appellee Stark County
Department of Job and Family Services (“SCJFS”).
STATEMENT OF THE FACTS AND CASE
{¶2} Mother N.B. and Appellant-Father E.W. are the biological parents of the
minor children K.B. (DOB 3/10/2011), D.B. (DOB 3/17/2014) and M.B. (DOB 1/12/2018).
{¶3} On May 19, 2021, Stark County Job and Family Services (SCJFS) filed a
Complaint alleging the dependency and/or neglect of K.B. (DOB 3/10/2011), D.B. (DOB
3/17/2014) and M.B. (DOB 1/12/2018) and an emergency order requesting that the
children be placed into the emergency temporary custody of SCJFS. (T. at 6). The
allegations contained in the Complaint detailed concerns regarding substance abuse by
the mother of the children, deplorable home conditions, cleanliness of the children, lack
of supervision of the children, and failure of the parents to provide for the children's basic
needs. (T. at 9-10). SCJFS later received additional concerns regarding the sexual abuse
of the children. (T. at 10, 55-56, 59).
{¶4} On May 20, 2021, the trial court held an emergency shelter care hearing
and found that probable cause existed for the issuance of the emergency orders, along
with several other findings. (T. at 7)
{¶5} On July 13, 2021, the trial court found the children to be dependent and
placed the children into the temporary custody of SCJFS. (T. at 7). The trial court
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 3
approved and adopted the initial case plan, found that SCJFS had engaged in reasonable
efforts to prevent the need for the removal of the children, and made several other
findings. (T. at 7). Specifically, the trial court found that Appellant was not interested in
placement of the children and did not desire to participate in case plan services.
{¶6} On November 16, 2021, the trial court reviewed the case. (T. at 7-10). The
trial court approved and adopted the case plan, found that SCJFS had made reasonable
efforts to finalize the permanency planning in effect, and ordered status quo. The trial
court also suspended Appellant's visitation with the children until further court order after
finding that visitation with Appellant was upsetting the children. (T. at 23). Appellant did
not object to the trial court’s order.
{¶7} On April 15, 2022, the trial court again reviewed the case. (T. at 7-10). The
trial court approved and adopted the case plan, found that SCJFS had made reasonable
efforts to finalize the permanency planning in effect, along with several other findings. The
trial court also modified Appellant's visits to be at the discretion of the children's therapists.
{¶8} On May 18, 2022, the trial court extended the temporary custody of the
children to SCJFS until November 19, 2022. (T. at 7-10). The trial court also found that
SCJFS had made reasonable efforts to finalize the permanency planning in effect.
{¶9} On October 14, 2022, the trial court again reviewed the case. (T. at 7-10).
The trial court approved and adopted the case plan, found that SCJFS had made
reasonable efforts to finalize the permanency planning in effect, and several other
findings.
{¶10} On November 17, 2022, the trial court again extended the temporary
custody of the children to SCJFS until May 19, 2023. (T. at 7-10). The Guardian ad Litem
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 4
for the children made an oral motion to suspend visitation with Appellant. The trial court
set the motion for further hearing on November 30, 2022.
{¶11} On November 30, 2022, the trial court reviewed the motion to suspend
visitation. The motion was set for further hearing on December 20, 2022, and the trial
court asked the Guardian ad Litem to file a written motion.
{¶12} On December 15, 2022, the Guardian ad Litem filed motions to suspend
visitation between Appellant and the children.
{¶13} On December 20, 2022, the trial court continued the pending motions to
suspend visitation to February 8, 2023.
{¶14} On February 8, 2023, the trial court suspended all visitation between the
children and Appellant. (T. at 23-25).
{¶15} On March 29, 2023, SCJFS filed motions seeking permanent custody of the
children. (T. at 3).
{¶16} On May 26, 2023, the trial court again reviewed the case. The trial court
approved and adopted the case plan, found that SCJFS had made reasonable efforts to
finalize the permanency planning in effect, and several other findings. The trial court also
found that there were no compelling reasons to preclude a request for permanent
custody. Specifically, the trial court found that "neither parent seems to have an
appreciation for the trauma the children experienced" and "the parents simply have not
fully taken advantage of the services offered". Appellant did not object to the order.
{¶17} On June 20, 2023, Attorney Kathaleen O’Brien, the Guardian ad Litem for
the children, filed her final report. In her report, Attorney O’Brien noted several concerns
with Appellant's ability to safely parent the children. Ultimately, Attorney O'Brien
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 5
recommended that permanent custody be granted as it was in the children's best
interests.
{¶18} On June 27, 2023, the trial court heard evidence on the motions requesting
permanent custody of the children. During the first phase of the hearing, the trial court
heard testimony and received evidence from SCJFS Caseworker Kimberly Gabel, Dr.
Steven Dean, Erin Peltz (Goodwill Parenting Instructor), and Guardian ad Litem Attorney
Kathaleen O’Brien as follows:
{¶19} Ms. Kimberly Gabel testified that she is employed by SCJFS as the
caseworker assigned to the case. (T. at 4). She testified that the initial concerns in the
case involved substance abuse by the mother of the children and the children's basic
needs not being met (T. at 9-10). She testified that, after receiving custody of the children,
SCJFS received additional concerns about the sexual abuse of the children. (T. at 10).
She testified as to the procedural history of the case as set forth above.
{¶20} Caseworker Gabel further testified that the children had been in the
continuous temporary custody of SCJFS for over two years. (T. at 8-9). Ms. Gabel
testified that the case plan included trauma evaluations for the children. (T. at 11). She
testified that the evaluations diagnosed the children with a combination of post-traumatic
stress disorder and adjustment disorder and recommended for the children to engage in
counseling to address past trauma. (T. at 11). Ms. Gabel testified to the concerns
regarding the mother of the children including her mental health issues, drug use, and
parenting ability, and to her general lack of compliance with case plan services and
inability to remedy the risk she posed to the children.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 6
{¶21} Caseworker Gabel testified that Appellant-Father's initial case plan
consisted of completing a parenting assessment and following through with all resulting
recommendations, substance abuse treatment, establishing sobriety, mental health
treatment, and parenting classes. (T. at 19). She testified that Appellant-Father completed
a parenting evaluation which recommended that he engage in comprehensive mental
health treatment, Goodwill Parenting Classes, and demonstrate healthy boundaries with
the mother of the children. (T. at 19). The evaluation was admitted into evidence. (T. at
3).
{¶22} Caseworker Gabel testified that Appellant-Father completed a mental
health assessment in July, 2021, was diagnosed with PTSD and cannabis abuse, and
was recommended to engage in outpatient individual counseling. (T. at 19). She testified
that Appellant did not engage in treatment and was discharged in October, 2021. (T. at
20). She testified that Appellant completed a second assessment in July, 2022, but was
again discharged after not engaging in services. (T. at 20). She testified that, despite the
multiple recommendations, Appellant stated that he would not be doing mental health
treatment. (T. at 20). Ms. Gabel testified that she remains concerned about Appellant's
mental health due to his very emotional presentation and refusal to engage in treatment.
(T. at 20-21).
{¶23} Caseworker Gabel testified that Appellant-Father was placed on drug
screening via the color code method in December, 2022. (T. at 21). She testified that
Appellant missed 36 of his 47 drug screens and tested positive for marijuana in six of the
11 screens he did take. (T. at 21). She testified that Appellant did not provide proof of
having a medical marijuana card. (T. at 27).
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 7
{¶24} Ms. Gabel testified that Appellant-Father started Goodwill Parenting in
September, 2022. (T. at 21). She explained that Goodwill Parenting was the most
comprehensive parenting program available and that several agencies in several counties
use the program. (T. at 35-37). She testified that Appellant did not successfully complete
the program and was subsequently recommended to engage in mental health treatment
and to have no unsupervised contact with the children. (T. at 22).
{¶25} Caseworker Gabel testified that Appellant-Father's visitation with the
children was suspended by the trial court in November, 2021, and modified to visitation
in a therapeutic setting only in April, 2022. (T. at 22-23).
{¶26} Ultimately, Ms. Gabel testified that the original concerns had not been
remedied, Appellant-Father was not engaging in services, and Appellant could not
provide an adequate home for the children. (T. at 25). She testified that she had made
reasonable efforts to try to reunify the children and that there were no extensions of
temporary custody remaining on the case. (T. at 26).
{¶27} Next, the trial court heard testimony from Dr. Steve Dean who testified for
SCJFS. (T. at 38-49). Appellant stipulated to Dr. Dean being qualified as an expert
witness. (T. at 38-39). Dr. Dean testified that he conducted a psychological assessment
on the mother of the children and that he made a report detailing the assessment. (T. at
40). The report was admitted into evidence without objection. (T. at 41-42). Dr. Dean
testified that the mother of the children disclosed a history of domestic violence by
Appellant. (T. at 44).
{¶28} Ms. Erin Peltz, a parenting instructor for Goodwill Industries, also testified
for SCJFS. She testified that parenting instructors for the program lead the class, provide
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 8
the class with information on the topics, and supervise visits. (T. at 50). She was not
qualified as an expert witness and Appellant did not object to any portion of her testimony.
(T. at 49-89). She testified that the course is a 10-week program with classes and 10
hours of supervised visitation with the children. (T. at 50). She testified that the course is
used by clients in eight counties. (T. at 51). She testified that the goal of the program is
to enhance parenting skills by providing parents with parenting knowledge and helping
them overcome their parenting deficits. Id.{¶29} Ms. Peltz testified that the mother of the children participated in the
program. (T. at 52). She testified that she made a report detailing her involvement in the
class. (T. at 42). The report was admitted into evidence without objection. (T. at 53).
{¶30} Ms. Peltz testified that Appellant-Father also participated in the program. (T.
at 52). She testified that she made a report detailing his involvement in the class. (T. at
42). The report was admitted into evidence without objection. (T. at 53).
{¶31} Ms. Peltz stated that Appellant-Father was referred to the program due to
the children’s history with sexual abuse. (T. at 59). Ms. Peltz explained that K.B. was
sexually abused by her grandfather and that she then sexually abused her brother D.B.
Id. K.B. and D.B. then sexually abused their younger sister M.B. Id.{¶32} Ms. Peltz testified that Appellant-Father did not retain the information
presented in class. (T. at 59). She testified that she offered to meet with Appellant
individually, but he did not do so. Id. She testified that Appellant had four unexcused
absences during the class and one tardy. (T. at 60). She testified that Appellant was "very
histrionic" in class, did not stay on topic, and was not able to focus on the information
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 9
presented during class. Id. Ultimately, she testified that Appellant did not successfully
complete the program and earned a certificate of noncompliance. (T. at 61).
{¶33} Ms. Peltz testified that she had several concerns for Appellant-Father's
parenting during visitation with the children. (T. at 61). She testified that the visitation was
"confusing for the children ... unstructured ... chaotic". (T. at 65). She testified that
Appellant was "dismissive" with the children and ignored their overly sexualized
behaviors. (T. at 61). She testified that one of the children was "humping the ground"
during a visit and Appellant ignored the behavior and continued to play with toys. (T. at
62). She testified that Appellant's failure to recognize the behavior was especially
concerning due to the children’s history of sexual abuse. (T. at 63). She testified that she
did not believe Appellant would help the children with their trauma. (T. at 64). She testified
that Appellant did not discipline the children for their behaviors during visitation. (T. at 68).
She testified that Appellant could not handle more than one child at a time and required
extensive assistance from staff. (T. at 68). Ms. Peltz testified that Appellant-Father stated
that he did not believe parents should parent children of the opposite sex and that he did
not want placement of his female children. (T. at 67).
{¶34} She testified that M.B. did not participate in the visitation due to the
recommendation of her counselor. (T. at 67). Ms. Peltz testified that she recommended
for Appellant-Father to engage in mental health treatment due to his presentation during
class but that he refused to do so. (T. at 70-71). She testified that she saw no
improvement with Appellant's parenting during the course and actually saw "a downward
spiral in him towards the end". (T. at 72).
{¶35} SCJFS then rested. Appellant offered no evidence for the first phase of trial.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 10
{¶36} The trial court proceeded to the second phase of the trial, wherein SCJFS
presented additional testimony from Caseworker Gabel regarding the best interests of the
children.
{¶37} Caseworker Gabel testified that K.B. is on an IEP and struggles behaviorally
in school. (T. at 91). She testified that D.B. doesn't qualify for an IEP but also struggles in
school. (T. at 91). She testified that M.B. is "fairly typical" developmentally. (T. at 91). She
testified that the children have no major health concerns. (T. at 91).
{¶38} Ms. Gabel testified that the children have experienced a significant amount
of trauma. (T. at 91-92). She testified that K.B. is 12 years old and still wets the bed nightly
and defecates herself. (T. at 91). She testified that K.B. and D.B. are prescribed mental
health medication. (T. at 91-92). She testified that the children are all in mental health
treatment due to recommendations from trauma evaluations. (T. at 92).
{¶39} Ms. Gabel testified that K.B. is placed in a foster home, D.B. is placed with
a maternal aunt, and M.B. is placed with an after-born sibling in a different foster home
than K.B. (T. at 93). She testified that the children were initially placed together in the
same foster home but were separated due to them engaging in sexually inappropriate
behavior on each other. (T. at 93).
{¶40} Caseworker Gabel testified that the children were all making improvements
in their placements. (T. at 94). She testified that M.B.’s foster home is interested in
adoption. (T. at 95). She testified that M.B. is bonded with her foster parents and adapted
well to the family. (T. at 95). She testified that K.B.'s foster home is not interested in
adoption. (T. at 96). She testified that the maternal aunt is interested in adopting D.B. (T.
at 96-97).
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 11
{¶41} Ms. Gabel testified that Appellant-Father's visitation with the children was
suspended in November, 2021, due to sexual abuse allegations. (T. at 98). She testified
that in April, 2022, the trial court altered the suspension to allow for visitation in a
therapeutic setting. (T. at 99). She testified that Appellant visited D.B. and K.B. at the
Agency from April, 2022, to September, 2022, and then at Goodwill Parenting. (T. at 99-
100). She testified that Appellant did not visit M.B. after November, 2021, except for one
visit which resulted in M.B.'s behavior regression. (T. at 100-101). She testified that
Appellant was not interactive with the children during visitation. (T. at 100). She testified
that D.B. "has a love for" Appellant, but K.B. is not bonded with Appellant. (T. at 103).
{¶42} Ms. Gabel testified that permanent custody of the children is in their best
interests. (T. at 97). She testified that there are no appropriate relatives to take custody
of the children. Id. She testified-that the damage of severing the parental bond is
outweighed by the benefit of permanency. (T. at 103).
{¶43} SCJFS rested for the second phase of the trial. Appellant again offered no
evidence.
{¶44} Attorney O'Brien made a statement resting on her report recommending
that permanent custody be granted to the Agency. (T. at 106).
{¶45} At the conclusion of the hearing, the trial court took the matter under
advisement.
{¶46} By Judgment Entry filed July 5, 2023, the trial court issued its findings of
fact granting permanent custody of the children to SCJFS and terminating the parental
rights of Appellant.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 12
{¶47} It is from this Judgment Entry Appellant-Father appeals, assigning the
following errors:
ASSIGNMENTS OF ERROR
{¶48} "I. THE TRIAL COURT ERRED IN FINDING THAT PERMANENT
CUSTODY WAS IN THE BEST INTERESTS OF K.B., D.B., AND M.B., AS SUCH A
FINDING WAS UNSUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶49} “II. THE TRIAL COURT ERRED IN DETERMINING THAT STARK
COUNTY JOB AND FAMILY SERVICES MADE REASONABLE EFFORTS.
{¶50} “III. THE CASE PLAN OF STARK COUNTY JFS WAS NOT GUIDED BY
THE GENERAL PRIORITIES ENUMERATED IN R.C. 2151.412(H).
{¶51} “IV. 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.”
{¶52} This case comes to us on the expedited calendar and shall be considered
in compliance with App.R. 11.2(C).
I.
{¶53} In his first assignment of error, Appellant-Father maintains the trial court's
finding an award of permanent custody was in the best interest of the minor children was
against the manifest weight and sufficiency of the evidence. We disagree.
{¶54} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 13
Jeffries, Stark App. No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported by
some competent, credible evidence going to all the essential elements of the case will not
be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶55} 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 the 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.
{¶56} 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, 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 placement agencies for twelve or
more months of a consecutive twenty-two month period ending on or after March 18,
1999.
{¶57} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 14
§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶58} In this case, it is undisputed that the minor children have been in the custody
of the Agency for twelve or more months out of the consecutive twenty-two-month period.
Therefore, we proceed to consider the applicability of the best interest factors.
{¶59} We review a trial court's best interest determination under R.C.
§2151.414(D) for an abuse of discretion. 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. 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).
{¶60} In determining the best interest of the child at a permanent custody hearing,
R.C. §2151.414(D)(1) mandates the trial court must 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 parents 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; (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; and (e) whether any of the factors in division (E)(7)
to (11) of R.C. 2151.414 apply in relation to the parents and child.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 15
{¶61} 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
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.
{¶62} Appellant-Father argues the trial court abused its discretion in finding
permanent custody to be in the best interest of the children, 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. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶ 57.
{¶63} As set forth in detail above, the caseworker involved with the family testified
the children have all experienced a significant amount of trauma. (T. at 91-92). She
testified that both K.B. and D.B. both struggle in school and K.B. is on an IEP. (T. at 91).
K.B. and D.B. are also both prescribed mental health medication. (T. at 91-92). All three
children are in mental health treatment as recommended by their trauma evaluations. (T.
at 92).
{¶64} The caseworker testified that while the children were initially placed
together, they had to be separated due to the children committing sexual abuse on one
another. (T. at 93). She stated that the children were all doing well in their individual
placements and were making improvements. (T. at 94). She testified that M.B. is bonded
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 16
with her foster parents and that they are interested in adoption. (T. at 95-96). D.B. is also
doing well with his maternal aunt and she is interested in adopting him. (T. at 96-97).
{¶65} As to Appellant-Father’s visitation and interaction with the children, the
Caseworker testified that Appellant-Father's visitation with the children was suspended in
November, 2021, due to sexual abuse allegations and that in April, 2022, the trial court
altered the suspension to allow for therapeutic visitation. (T. at 98-99). She testified that
Appellant visited D.B. and K.B. at the Agency from April, 2022, to September, 2022, and
then at Goodwill Parenting. (T. at 99-100). She testified that Appellant only visited M.B.
once after November, 2021, and that visit resulted in M.B.'s behavior regression. (T. at
100-101). She testified that Appellant was not interactive with the children during
visitation. (T. at 100). She testified that D.B. "has a love for'' Appellant, but K.B. is not
bonded with Appellant. (T. at 103). Ms. Gabel testified that permanent custody is in the
best interests of the children. (T. at 97). She also testified that there are no appropriate
relatives to take custody of the children. (T. at 97). Finally, she testified that the damage
of severing the parental bond is outweighed by the benefit of permanency. (T. at 103).
{¶66} Caseworker Gabel also testified that despite multiple recommendations for
Appellant-Father to engage in substance abuse treatment, individual counseling and
mental health treatment, Appellant refused. (T. at 20-21). She testified that he missed 36
of 47 drug screens and tested positive for marijuana use six of those remaining eleven
times. (T. at 20-21). She further testified that Appellant failed to complete the Goodwill
Parenting program. (T. at 22). Additional testimony from Dr. Dean and Goodwill Industries
parenting instructor Erin Peltz supported Ms. Gabel’s concerns.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 17
{¶67} Based on the record before us, we find there was competent, credible
evidence Appellant-Father failed to remedy the problems which caused the removal of
the minor children from the home, and that an award of permanent custody was in the
children’s best interest and was not against the manifest weight of the evidence.
{¶68} Appellant-Father’s first assignment of error is overruled.
II.
{¶69} In his second assignment of error, Appellant argues that the trial court erred
in finding that SCJFS made reasonable efforts. We disagree.
{¶70} R.C. §2151.419 requires the trial court to determine whether the agency
filing the complaint for custody “has made reasonable efforts * * * to eliminate the
continued removal of the child from his home, or to make it possible for the child to return
home.” Subsection (B)(1) mandates the trial court to issue written findings of fact setting
forth the reasonable efforts made by the agency, including a brief description of “the
relevant services provided by the agency to the family of the child and why those services
did not prevent the removal of the child from his home or enable the child to return home.”
{¶71} However, even where a trial court has failed to include in its judgment entry,
the findings contemplated by R.C. §2151.419(B)(1), we have found that the ultimate issue
is the reasonableness of the Agency's efforts and have concluded those efforts may be
determined from the record. In the matter of Kell/Bess Children, 5th Dist. No. 97CA0278,
1998 WL 401767 (Mar. 23, 1998); Hunt v. Ickes, 5th Dist. Tuscarawas No. 2014 AP 08
0032, 2015-Ohio-309, ¶ 19; In Re: M.M., 5th Dist. Stark No. 2021CA00159, 2022-Ohio-
1569, ¶ 49.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 18
{¶72} The Supreme Court of Ohio noted the following in In re C.F., 113 Ohio St.3d
73, 78, 862 N.E.2d 816 (2007):
[N]o one section of the Revised Code addresses the concept of
reasonable efforts. Overall, Ohio's child-welfare laws are designed to care
for and protect children, ‘whenever possible, in a family environment,
separating the child from the child's parents only when necessary for the
child's welfare or in the interests of public safety.’ R.C. 2151.01(A). To that
end, various sections of the Revised Code refer to the agency's duty to
make reasonable efforts to preserve or reunify the family unit. For example,
R.C. 2151.412 requires the agency to prepare and maintain a case plan for
children in temporary custody with the goal ‘to eliminate with all due speed
the need for the out-of-home placement so that the child can safely return
home.’ Under R.C. 2151.413(D)(3)(b), an agency may not file for permanent
custody under R.C. 2151.413(D) - the ‘12 months out of 22 rule’ ‘[i]f
reasonable efforts to return the child to the child's home are required under
section 2151.419 and the agency has not provided the services required by
the case plan.
{¶73} A “reasonable effort” is “* * * an honest, purposeful effort, free of malice and
the design to defraud or to seek an unconscionable advantage.” In re Weaver, 79 Ohio
App.3d 59, 63, 606 N.E.2d 1011(12th Dist. 1992). The issue is not whether there was
anything more the agency could have done, but whether the agency's case planning and
efforts were reasonable and diligent under the circumstances of the case. In re J.D., 3rd
Dist. Hancock Nos. 5-10-34, 2011-Ohio-1458. The child's health and safety are
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 19
paramount in determining whether reasonable efforts were made. In re R.P., 5th Dist.
Tuscarawas No. 2011-Ohio-5378{¶74} Further, the Agency points out that R.C. §2151.419(A)(1) does not apply in
a hearing on a motion for permanent custody filed pursuant to R.C. 2151.414. In re C.F.,
113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 43. Although the state must still
make reasonable efforts to reunify the family during the child-custody proceedings prior
to the termination of parental rights, it may establish that reasonable efforts have been
made prior to the hearing on a motion for permanent custody. Id.{¶75} In the instant case, the trial court made findings of reasonable efforts on
seven occasions prior to the permanent custody hearing, specifically, May 20, 2021, July
13, 2021, November 16, 2021, April 15, 2022, May 18, 2022, October 14, 2022, and May
26, 2023. Appellant-Father never objected to any of the magistrate's seven findings of
best efforts, and the trial court was not required to make a best efforts determination at
the permanent custody hearing.
{¶76} Notwithstanding the trial court's previous findings of reasonable efforts, we
find that Appellee also established at the hearing that its case planning and efforts were
reasonable and diligent under the circumstances of the case. See, In re J.D., supra, 2011-
Ohio-1458.
{¶77} We find there is competent and credible evidence to support the juvenile
court's determination the efforts of the Agency to reunite the children with Appellant-
Father were reasonable and diligent under the circumstances of the case
{¶78} Appellant-Father’s second assignment of error is overruled.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 20
III., IV.
{¶79} In his third and fourth assignments of error, Appellant argues SCJFS’ case
plan was not guided by the general priorities enumerated in R.C. §2151.412(h) and that
the grant of permanent custody of D.B. to SCJFS violated his right to due process. We
disagree.
{¶80} Specifically, Appellant-Father argues that R.C. §2151.412(H)(2) creates a
statutory preference or priority that a child be placed with a relative when possible and
that therefore the maternal aunt should have been granted legal custody of D.B.
{¶81} 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.
{¶82} 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.,
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 21
8th Dist. No. 105504, 2018-Ohio-96, ¶ 41, 102 N.E.3d 1264. 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, ¶
26.
{¶83} Therefore, R.C. §2151.412(H)(2) is inapplicable here, when the question
before the trial court was whether permanent custody was in the children's best interests.
{¶84} 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 (1983), 86 Ohio App.3d 716,
621 N.E.2d 1222; In Re: Dixon (Nov. 29, 1991), Lucas App. No. L-91-021, unreported; In
Re: Cundiff (Nov. 20, 1995), Stark App. No.1995 CA 00102, 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”).
{¶85} 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
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 22
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
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.
{¶86} 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.
Stark County, Case Nos. 2023 CA 00072, 00073 and 00074 23
{¶87} We also note that neither the maternal aunt nor any other family member
filed a motion for legal custody of the children in this case.
{¶88} 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.”
{¶89} Inasmuch as she did not file a motion requesting legal custody of the
children 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 the maternal aunt. 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.
{¶90} Appellant-Father’s third and fourth assignments of error are overruled.
{¶91} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas of Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
King, J., concur.
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