In re M.W.

[Cite as In re M.W., 2021-Ohio-1875.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN RE: M.W., : Hon. W. Scott Gwin, P.J.
MINOR CHILD : Hon. William B. Hoffman, J.
: Hon. John W. Wise, J.
:
:
: Case No. 2021 CA 00019
:
:
: OPINION
CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Family Court Division,
Case No. 2018JCV00603
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: June 2, 2021
APPEARANCES:
For - Appellant For - Stark County JFS
AARON KOVALCHIK BRANDON J. WALTENBAUGH
116 Cleveland Avenue N.W. 402 Second Street S.E.
Suite 808 Canton, OH 44702
Canton, OH 44702
[Cite as In re M.W., 2021-Ohio-1875.]
Gwin, P.J.
{¶1} Appellant-mother [“Mother”] appeals the January 25, 2021 Judgment Entry
of the Stark County Court of Common Pleas, Family Court Division, which terminated her
parental rights with respect to her minor child, M.W.1 (b. June 4, 2018) and granted
permanent custody of the child to appellee, Stark County Department of Jobs and Family
Services [“SCDJFS”].
Facts and Procedural History
{¶2} Appellant is the biological mother of the child. On June 7, 2018, SCDJFS
filed a complaint alleging the dependency and/or neglect of M.W. (DOB 6/4/2018). The
complaint requested temporary custody of the child to SCDJFS. On June 7, 2018, the
trial court held an emergency shelter care hearing and found that probable cause existed
for the involvement of SCDJFS, continued residence of the child in the home would be
contrary to his best interest and welfare, and SCDJFS had made reasonable efforts to
prevent the need for placement and/or to make it possible for the child to return home or
remain in the home.
{¶3} On June 15, 2018, SCDJFS filed an amended complaint correctly
reflecting M.W.'s legal name with substantially similar language as the first complaint.
{¶4} On August 30, 2018, the trial court found the child to be dependent and
placed the child into the temporary custody of SCDJFS. The child continuously remained
in the temporary custody of SCDJFS from that day forward. The trial court also approved
and adopted the initial case plan, found that SCDJFS had made reasonable efforts
1 See, Juv.R. 5; OH ST Supp. R. 44(H) and 45(D) concerning the use of the names of juveniles.
Stark County, Case No. 2021 CA 00019 3
to finalize the permanency planning in effect, and compelling reasons existed to preclude
a filing of permanent custody.
{¶5} On December 5, 2018, the trial court reviewed the case. The trial court
approved and adopted the case plan, found that SCDJFS had made reasonable efforts
to finalize the permanency planning in effect, compelling reasons existed to preclude a filing
of permanent custody, and ordered status quo.
{¶6} On May 3, 2019, the trial court again reviewed the case. The trial court
approved and adopted the case plan, found that SCDJFS had made reasonable efforts
to finalize the permanency planning in effect, compelling reasons existed to preclude a filing
of permanent custody, and ordered status quo.
{¶7} On June 6, 2019, the trial court extended the temporary custody of M.W.
to SCDJFS for six months. The trial court also found SCDJFS had made reasonable efforts
to finalize the permanency planning in effect and ordered the status quo.
{¶8} On November 1, 2019, the trial court again reviewed the case. The trial
court approved and adopted the case plan, found that SCDJFS had made reasonable
efforts to finalize the permanency planning in effect, and ordered the status quo. The trial
court found that no compelling reasons existed to preclude a filing of permanent custody.
{¶9} On November 6, 2019, SCDJFS filed a motion seeking permanent custody
of the child.
{¶10} On January 23, 2020, the trial court heard evidence on the motion
requesting permanent custody. Due to time constraints, the hearing was continued to
April 2, 2020. On April 7, 2020, due to the COVID-19 pandemic, the trial court continued
evidence on the motion requesting permanent custody to July 9, 2020. On June 27, 2020,
Stark County, Case No. 2021 CA 00019 4
due to the COVID-19 pandemic, the trial court again continued the evidentiary hearing
to September 3, 2020.
Permanent Custody trial.
Reasonable efforts.
{¶11} Amy Craig [“Craig”] was the ongoing SCDJFS caseworker. She testified
on January 23, 2020 that both Mother and Father were ordered to complete case
plan services.
{¶12} Craig testified that the initial concerns in this case regarded Mother's
ongoing mental health issues. According to Craig, Mother has a history of suicidal
ideation, had previously been admitted to Heartland, and has not wanted to take mental
health medication. Pursuant to her case plan, Mother was ordered to complete a
parenting assessment and follow any recommendations. Mother did complete the
assessment. The assessment recommended that Mother partake in comprehensive
mental health treatment, complete the Goodwill parenting program, gain suitable housing,
and participate in case management for the child.
{¶13} Mother had already been involved with counseling at Coleman Behavior
Health ["Coleman"]. Mother continued to engage in mental health services at Coleman
until October of 2019. Craig testified that Mother had not attended mental health treatment
since October of 2019.
{¶14} Mother engaged in the Goodwill parenting program twice, but failed to
successfully complete the program.
{¶15} Craig testified that Mother shoplifted at Walmart; however, no criminal
charges were filed. Craig testified that Mother said that she shoplifted because she
Stark County, Case No. 2021 CA 00019 5
believed the store was "poisoning people" with "GMOs". Shortly after the alleged
shoplifting incident, Mother stopped engaging in counseling. Craig testified that she
believed Mother's mental health concerns would interfere with her ability to parent M.W.
For example, Mother allegedly stated that if shoplifting was wrong, God would have
prevented her from doing it.
{¶16} Mother has consistently visited with M.W. during the duration of the case.
Craig testified that Mother could become argumentative, but she observed good
interaction between Mother and her child. Mother has stable housing. Her home was
clean and tidy with very few safety concerns. The home contained food and toys. Mother
receives a regular income through the SSI program2.
{¶17} Dr. Aimee Thomas testified for SCDJFS on January 23, 2020. The parties
stipulated to Dr. Thomas being an expert witness in the field of psychology. Dr. Thomas
testified that she conducted a parenting evaluation on Mother. A copy of the evaluation
was admitted into evidence as "DJFS Exhibit 1". Dr. Thomas testified that she had
significant concerns for Mother’s mental health, including her preoccupation with demons.
Dr. Thomas testified that she diagnosed Mother with schizophrenia paranoid type, rule-
out for psycho effective disorder, and bipolar disorder with psychosis. Dr. Thomas testified
that her diagnosis was based on Mother’s statements, including believing that medication
would poison her, and that mental health treatment was unnecessary. Dr. Thomas
testified that Mother's mental health would negatively impact her ability to parent a child.
Dr. Thomas testified that she recommended Mother participate in comprehensive mental
health treatment, case management services, psychiatric services, and Goodwill
2 Supplemental Security Income (SSI) is a Federal income supplement program.
Stark County, Case No. 2021 CA 00019 6
Parenting classes. Dr. Thomas opined that Mother’s prognosis was "not favorable". Dr.
Thomas stressed that natural remedies and supplements as well as “talk therapy” is not
enough to adequately address Mother’s mental health concerns.
{¶18} Dr. Thomas further testified that Mother had voluntarily presented herself
for hospitalization at Heartland Behavioral Health because she had thoughts of hitting her
mother with a mallet.
{¶19} April Bergert [“Bergert”] testified next for SCDJFS. Bergert testified that she
was Mother’s parenting instructor for the Goodwill Parenting program. Bergert testified
that Mother participated in Goodwill Parenting classes on two occasions. Bergert testified
that she wrote a report for each occasion, and those reports were later admitted into
evidence as "DJFS Exhibit 3" and "DJFS Exhibit 4".
{¶20} Mother was first involved with Goodwill from February 18, 2019 through
April 26, 2019. During Mother's first involvement with Goodwill, she scored a 56% on her
pre-test and 85% on her post-test assessment. Eighty-five percent is a passing score.
Bergert testified that Mother struggled with offering insight on her behaviors prior to
M.W.'s removal, her current behaviors, and how such behaviors affect her child. Bergert
also expressed concerns about Mother's interactions with her child, including speaking to
him in a monotone voice. She did observe improvement in Mother's interactions with her
child during the last four weeks of her first involvement with Goodwill. However, Mother
failed to successfully complete the program because Goodwill did not see enough
progress in all aspects of her programming including coping skills and positive lifestyle
changes. Mother submitted all twelve of the goals she was told to complete, however,
Goodwill only accepted four of those goals.
Stark County, Case No. 2021 CA 00019 7
{¶21} Mother's second involvement with Goodwill began August 12, 2019 and
ended October 18, 2019. Bergert testified that Mother demonstrated improvement during
her second session, including in her interactions with her child. Despite said
improvements, Bergert remained concerned about Mother's mental health and lack of
insight about how her mental health conditions could affect her child. Bergert also
remained concerned with Mother's flat affect when communicating with M.W. During her
second involvement, Mother scored a 96% on her pre-test and 84% on her post-test
assessments. She again submitted all twelve of her goals, yet only seven were accepted.
Mother was again terminated unsuccessfully.
{¶22} Upon cross-examination, Bergert admitted that Mother's interactions with
her child improved during her second involvement and that despite her "flat affect," Mother
still communicated with her child. Bergert stated that in response to Mother's flat affect,
the child would have a flat affect as well. Although Bergert stated several times that a
parent's flat affect can have a negative impact on a child, she could provide no authority
to support this assertion.
{¶23} When the permanent custody trial resumed on September 3, 2020, the state
called Mother to testify during the reasonable efforts portion of the trial. Mother
admitted that she had not gone to her original counselor for over a year. Mother
testified that she had a new counselor, but would not state the name of the counselor.
Mother later indicated that she had only been seeing the new counselor for three
weeks. Mother testified that she did not believe that she had mental health issues.
Best Interests
{¶24} SCDJFS presented testimony regarding the best interest of the child.
Stark County, Case No. 2021 CA 00019 8
Caseworker Craig again testified. Craig testified that the child had no medical or
developmental issues. Craig testified that the child had been placed in the same foster
home for almost 24 months. Craig testified that the child is very adapted to his foster
family. Craig testified that the foster family is interested in adopting the child. Craig
testified that there were no known appropriate relatives to care for the child.
{¶25} Craig described Mother’s visits with her child as "fair". Craig testified that
Mother spent a lot of time during visits talking about conspiracy theories instead of
interacting with her child. Craig testified that Mother struggled with basic supervision
of the child during visits. Craig testified that the child would benefit from permanency
and adoption. Craig testified that permanent custody was in the best interest of the
child.
{¶26} Mother again testified during the best interest phase of the trial. Mother
testified that she believed there was a bond between herself and her child. Mother has
lived in the same apartment in Canton for the last two years. Mother’s apartment has
two bedrooms and she keeps it clean. The apartment complex has security cameras.
Mother receives SSI and pays her bills on time. She is bonded with her child and
wishes to raise the child.
{¶27} The GAL for the child submitted a report that recommended that permanent
custody be granted to the SCDJFS.
{¶28} On January 25, 2021, the trial court issued its findings of fact granting
permanent custody of the child to SCDJFS and terminating the parental rights of Mother.
Specifically, the trial court found that, despite reasonable efforts by SCDJFS, the child
could not and should not be placed with Mother within a reasonable amount of time, the
Stark County, Case No. 2021 CA 00019 9
father of the child had abandoned the child, and the grant of permanent custody was in
the child's best interest.
Assignments of Error
{¶29} Mother raises two Assignments of Error,
{¶30} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD
CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS TIME OR
WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE.
{¶31} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST
INTERESTS OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF
PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND
SUFFICIENCY OF THE EVIDENCE.”
Law and analysis
Standard of Appellate Review
{¶32} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody
and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.
745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's
rights has been described as, “* * * the family law equivalent to the death penalty in a
criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).
Therefore, parents “must be afforded every procedural and substantive protection the law
Stark County, Case No. 2021 CA 00019 10
allows.” Id. An award of permanent custody must be based upon clear and convincing
evidence. R.C. 2151.414(B)(1).
{¶33} The Ohio Supreme Court has delineated our standard of review as follows,
“clear and convincing evidence” is “[t]he measure or degree of proof that will produce in
the mind of the trier of fact a firm belief or conviction as to the allegations sought to be
established. It is intermediate, being more than a mere preponderance, but not to the
extent of such certainty as required beyond a reasonable doubt as in criminal cases. It
does not mean clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-
104, 495 N.E.2d 23 (1986). In Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118(1954), the Supreme Court further cautioned,
The mere number of witnesses, who may support a claim of one or
the other of the parties to an action, is not to be taken as a basis for resolving
disputed facts. The degree of proof required is determined by the
impression which the testimony of the witnesses makes upon the trier of
facts, and the character of the testimony itself. Credibility, intelligence,
freedom from bias or prejudice, opportunity to be informed, the disposition
to tell the truth or otherwise, and the probability or improbability of the
statements made, are all tests of testimonial value. Where the evidence is
in conflict, the trier of facts may determine what should be accepted as the
truth and what should be rejected as false. See Rice v. City of Cleveland,
114 Ohio St. 299, 58 N.E.2d 768.
161 Ohio St. at 477-478. (Emphasis added). A court of appeals will affirm the trial court's
findings “if the record contains competent, credible evidence by which the court could
Stark County, Case No. 2021 CA 00019 11
have formed a firm belief or conviction that the essential statutory elements for a
termination of parental rights have been established.” In re Adkins, 5th Dist. Nos.
2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.
Requirements for Permanent Custody Awards
{¶34} R.C. 2151.414 sets forth the guidelines a trial court must follow when
deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court
schedule a hearing and provide notice upon filing of a motion for permanent custody of a
child by a public children services agency or private child placing agency that has
temporary custody of the child or has placed the child in long-term foster care.
{¶35} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to
grant permanent custody of the child to the public or private agency if the court
determines, by clear and convincing evidence, it is in the best interest of the child to grant
permanent custody to the agency, and that any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
twenty-two-month period, or has not been in the temporary custody of one
or more public children services agencies or private child placing agencies
for twelve or more months of a consecutive twenty-two-month period if, as
described in division (D)(1) of section 2151.413 of the Revised Code, the
child was previously in the temporary custody of an equivalent agency in
another state, and the child cannot be placed with either of the child's
Stark County, Case No. 2021 CA 00019 12
parents within a reasonable time or should not be placed with the child's
parents;
(b) the child is abandoned;
(c) the child is orphaned and there are no relatives of the child who
are able to take permanent custody; or
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve or
more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶36} 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.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
1. Parental Placement within a Reasonable Time–R.C. 2151.414(B)(1)(a).
{¶37} The court must consider all relevant evidence before determining the child
cannot be placed with either parent within a reasonable time or should not be placed with
the parents. R.C. 2151 .414(E). The statute also indicates that if the court makes a
finding under R.C. 2151.414(E)(1)-(15), the court shall determine the children cannot or
Stark County, Case No. 2021 CA 00019 13
should not be placed with the parent. A trial court may base its decision that a child
cannot be placed with a parent within a reasonable time or should not be placed with a
parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of
one factor alone will support a finding that the child cannot be placed with the parent
within a reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661
N.E.2d 738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998);
In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).
{¶38} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining
whether a child cannot be placed with either parent within a reasonable period of time or
should not be placed with the parents. Specifically, Section (E) provides, in pertinent part,
as follows:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be placed with the parents, the court
shall consider all relevant evidence. If the court determines, by clear and
convincing evidence, at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code that one or more of the following exist as to each of the child’s
parents, the court shall enter a finding that the child cannot be placed with
either parent within a reasonable time or should not be placed with either
parent:
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(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for changing parental conduct to allow them to resume and
maintain parental duties.
***
(16) Any other factor the court considers relevant.
{¶39} R.C. 2151.414(D) requires the trial court to consider all relevant factors in
determining whether the child’s best interests would be served by granting the permanent
custody motion. These factors include but are not limited to: (1) the interrelationship of
the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)
the child’s need for a legally secure placement and whether such a placement can be
achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)
to (11) apply.
{¶40} As set forth above, the trial court’s findings are based upon competent
credible evidence. The record includes the recommendation of the guardian ad litem for
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the child, and the testimony of the witnesses at trial. The trial court was in the best position
to determine the credibility of the witnesses.
{¶41} Expert testimony was presented during the permanent custody trial that
demonstrated Mother’s mental health concerns and her refusal or inability to
acknowledge and address those concerns. As the trial court noted in its findings of fact,
Dr. Thomas reported that Mother was challenging to interview
because of her inadequately addressed mental health disorder. As the
evaluation progressed, Dr. Thomas found Mother's delusional beliefs
became more evident. Mother has significant mental health concerns.
Mother’s lacks insight into her illness and because of that cannot follow
through with services. Mother wants to use natural medications and
supplements to care for her mental illness. Mother did voluntarily admit
herself into Heartland Behavioral Health. This voluntary admission occurred
after Mother had a physical altercation with her mother. Mother stated to Dr.
Thomas, "I pictured myself hitting my mom and taking a mallet and hitting
the TV set." Mother did clarify to Dr. Thomas that she did not physically
assault her Mother, but left the residence before she engaged in violent
behaviors. Mother then stated to Dr. Thomas, "Then some guy had a gun
so I lied to get into a mental institution." Mother also expressed concern
about taking medications because she feared they were poison. Mother
worried that her son would be entered by demons. At one point in the
interview, Mother stated, "I'm a target of demons and Satan and Satan's
minions because I'm a Christian." Mother then discussed people with 200
Stark County, Case No. 2021 CA 00019 16
spirits within their body and the Ouija board. Mother then stated, "I have not
been suicidal for a while, but when you get drunk, spirits come out of your
body." Dr. Thomas found it difficult to redirect Mother. Several times during
the interview, Mother would go off subject and talk of the dark kingdom or
the influence Satan had over the minds of other individuals. Dr. Thomas
found Mother's presentation to be consistent with an individual who meets
the criteria for a medically based mental health disorder such as
Schizophrenia or Schizoaffective Disorder. Dr. Thomas found Mother to
lack insight into concerns surrounding her mental health symptoms and Dr.
Thomas found Mother to be quite invested in her delusional belief system.
Because of these delusions, Dr. Thomas felt Mother may jeopardize the
child’s safety if she was not medicated and receiving mental health
counseling. Following the clinical interview and testing, Dr. Thomas found
Mother's presentation noteworthy and revealing of the severity of concerns
regarding Mother's mental health. Dr. Thomas found Mother to have
invested herself in a delusional belief system which is preoccupied with
demons, Satan and her faith in God. Dr. Thomas wrote how in addition to
experiencing psychosis, Mother presented with a thought disorder as
manifested in her loose associations and disjointed accounts. Dr. Thomas
found Mother's presentation suggestive of an individual who meets the
criteria for Schizophrenia or Schizoaffective Disorder.
{¶42} The evidence demonstrated the successful efforts Mother had made on
some parts of the case plan. On that point, the evidence demonstrates that any
Stark County, Case No. 2021 CA 00019 17
improvement that Mother has made in her life is tentative and, perhaps, temporary, and
that she is at risk of relapse. The trial court found that, regardless of Mother’s compliance
with aspects of his case plan, she was still not able to be a successful parent to this child.
{¶43} In the case of In re: Summerfield, 5th Dist. Stark No. 2005CA00139, 2005-
Ohio-5523, this court found where, despite marginal compliance with some aspects of the
case plan, the exact problems that led to the initial removal remained in existence, a court
does not err in finding the child cannot be placed with the parent within a reasonable time.
{¶44} Based upon the foregoing, as well as the entire record in this case, the Court
properly found M.W. could not or should not be returned to Mother within a reasonable
time. Despite offering numerous services, Mother was unable or unwilling to mitigate the
concerns that led to the child's removal.
2. The child had been in the temporary custody of the agency for a period
more than twelve of the prior twenty-two consecutive months – R.C.
2151.414(B)(1)(d).
{¶45} Before a public children-services agency or private child-placing agency
can move for permanent custody of a child on R.C. 2151.414(B)(1)(d) grounds, the child
must have been in the temporary custody of an agency for at least 12 months of a
consecutive 22–month period. In re: C.W., 104 Ohio St.3d 163, 2004–Ohio–6411, 818
N.E.2d 1176 at paragraph one of the syllabus. When calculating this period, the court in
C.W. cautioned, “the time that passes between the filing of a motion for permanent
custody and the permanent-custody hearing does not count toward the 12–month period
set forth in R.C. 2151.414(B)(1)(d).” Id. at 167, 2004–Ohio–6411 at ¶ 26, 818 N.E.2d at
1180. Accord, In re: N.C., 5th Dist. No. 2011-CA-00141, 2011-Ohio-6113, ¶32.
Stark County, Case No. 2021 CA 00019 18
{¶46} Although the trial court did not make a finding that the child had been in the
temporary custody of the agency for a period of time in excess of twelve of the prior
twenty-two consecutive months pursuant to R.C. 2151.414(B)(1)(d), the record
establishes that fact. Caseworker Craig testified that M.W. was removed from the home
on June 7, 2018 and was adjudicated Dependent on August 30, 2018. T. Jan. 23, 2020
at 9. The motion for permanent custody was filed November 6, 2019. She further testified
that the child had been in the custody of SCDJFS for over 12 months. Id. at 10. Thus, the
record establishes that the child has been in the custody of the SCDJFS for over twelve
months.
{¶47} This finding alone, in conjunction with a best-interest finding, is sufficient to
support the grant of permanent custody. In re Calhoun, 5th Dist. No. 2008CA00118,
2008–Ohio–5458, ¶ 45.
3. The Best Interest of the Child.
{¶48} We have frequently noted, “[t]he discretion which the juvenile court enjoys
in determining whether an order of permanent custody is in the best interest of a child
should be accorded the utmost respect, given the nature of the proceeding and the impact
the court’s determination will have on the lives of the parties concerned.” In re Mauzy
Children, 5th Dist. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re
Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).
{¶49} In determining the best interest of the child at a permanent custody
hearing, R.C. 2151.414(D) mandates the trial court must consider all relevant factors,
including, but not limited to, the following: (1) the interaction and interrelationship of the
child with the child’s parents, siblings, relatives, foster parents and out-of-home providers,
Stark County, Case No. 2021 CA 00019 19
and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; (4) the child’s need for a
legally secure placement and whether that type of placement can be achieved without a
grant of permanent custody; and (e) whether any of the factors in divisions (E)(7) to (11)
of this section apply in relation to the parents and child. No one element is given greater
weight or heightened significance. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816.
{¶50} A child’s best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. The willingness of a relative to care
for the child does not alter what a court considers in determining permanent custody. In
re Patterson, 134 Ohio App.3d 119, 730 N.E.2d 439 (9th Dist. 1999); In re Adoption of
Ridenour, 61 Ohio St.3d 319, 574 N.E.2d 1055 (1991). Accordingly, a court is not required
to favor a relative if, after considering all the factors, it is in the child’s best interest for the
agency to be granted permanent custody. In re R.P. and I.S., 5th Dist. Tuscarawas No.
2011AP050024, 2011-Ohio-5378.
{¶51} In the present case, the trial court's decision indicates it considered the best
interest factors. The trial court concluded the child's need for legally secure placement
could not be achieved without awarding permanent custody to SCDJFS. Upon review of
the record, the record supports the trial court's finding that granting the motion for
permanent custody is in the child’s best interest.
{¶52} The child is currently residing with a foster family and is doing well. He has
been with the same family since he was born. The family is interested in adoption.
Stark County, Case No. 2021 CA 00019 20
SCDJFS could not locate any relatives to provide permanency for this child. The GAL
presented a written report to the trial court that recommended permanent custody be
granted to the SCDJFS.
Conclusion
{¶53} For these reasons, we find that the trial court’s determination that Mother
had failed to remedy the issues that caused the initial removal and therefore the child
could not be placed with her within a reasonable time or should not be placed with her
was based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court’s decision that permanent
custody to SCDJFS was in the child's best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
{¶54} Because the evidence in the record supports the trial court’s judgment, we
overrule Appellant-Mother’s two assignments of error, and affirm the decision of the Stark
County Court of Common Pleas, Family Court Division.
By Gwin, P.J.,
Hoffman, J., and
Wise, John, J., concur