In re B.B.

[Cite as In re B.B., 2021-Ohio-2299.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
B.B. et al., : No. 20AP-488
(C.P.C. No. 20JU-2288)
[J.B., :
(REGULAR CALENDAR)
Appellant]. :
In the Matter of: :
B.B. et al., : No. 20AP-490
(C.P.C. No. 20JU-2288)
[B.B. et al., :
(REGULAR CALENDAR)
Appellants]. :
In the Matter of: :
B.B. et al., : No. 20AP-517
(C.P.C. No. 20JU-2288)
[H.B., :
(REGULAR CALENDAR)
Appellant]. :
D E C I S I O N
Rendered on July 6, 2021
On brief: John T. Ryerson, for appellant J.B.
On brief: David K. Greer, for appellants B.B. et al.
On brief: William T. Cramer, for appellant H.B.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
On brief: David L. Rowland, Guardian ad Litem.
APPEALS from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
Nos. 20AP-488, 20AP-490, and 20AP-517 2
SADLER, J.
{¶ 1} Appellants, H.B. ("Mother"), J.B. ("Father"), and their seven biological
children (collectively "the children"), appeal a judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch, that granted appellee,
Franklin County Children Services ("FCCS"), permanent custody of the children for
purposes of adoption. For the following reasons, we affirm that judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} The relevant background events of this case were documented previously by
this court in In re M.B., 10th Dist. No. 19AP-460, 2020-Ohio-550:
On April 20, 2016, appellee, Franklin County Children
Services ("FCCS"), filed two complaints with the trial court
alleging the children were dependent. One complaint
concerned the older four siblings (B.B., T.B., A.B., and C.B.),
and other complaint concerned the three younger siblings
(M.B., J.W.B., and D.B.). The complaints alleged that the
school-aged children were often absent from school, the
family was struggling to maintain housing, and Father had
tested positive for illegal drugs.
At a preliminary hearing held on April 27, 2016, a magistrate
initially granted FCCS temporary orders of custody for the
children. In judgments effective June 14, 2016, the trial court
adjudicated the children dependent children, and it
committed the children to FCCS' temporary custody pursuant
to R.C. 2151.353(A)(2). In judgments effective April 27, 2017,
the trial court granted FCCS' motions to extend the agency's
temporary custody of the children for an additional six
months.
FCCS moved for permanent custody of the children on
September 19, 2017. In judgments dated April 1, 2019, the
trial court denied the agency's motions.
Having rejected granting FCCS permanent custody, the trial
court immediately turned its attention to exploring whether it
was in the children's best interests to return the children to
Mother's custody. In the judgments denying the motion for
permanent custody, the trial court set a hearing for May 6,
2019 to "review [the] orders as to custody, and [ ] consider
protective supervision, Father's visitation rights, and Father's
obligation to pay child support to Mother." (Apr. 1, 2019
Jgmt. Entries Den. Permanent Custody at 16.) The trial court
ordered Mother to:
Nos. 20AP-488, 20AP-490, and 20AP-517 3
make arrangements to resume a parenting
program, make arrangements for family
counseling between the Children and herself,
and * * * be prepared to present evidence of an
executed lease for and the furnishing of housing
for the Children and herself and a budget based
on a realistic estimation of the expenses of her
family and available financial resources.
Id. In the meantime, the trial court provided that FCCS would
"retain temporary custody * * * of the Children herein until
further order of the Court." Id.The May 6, 2019 hearing occurred as scheduled. Apparently,
the trial court was unsatisfied with Mother's compliance with
its April 1, 2019 orders because it did not alter the existing
custody arrangement after the hearing. Instead, in the May 6,
2019 orders that resulted from the hearing, the trial court
imposed even more requirements on Mother: she was to
perform drug screens; bar overnight visitors, Father, Father's
brother, and her sister-in-law from her home; and bring a
budget and detailed childcare plan to the next hearing.
On May 30, 2019, FCCS again moved for permanent custody
of the children. FCCS represented in its motions that Mother
had not complied with the trial court's April 1, 2019 and May
6, 2019 orders. Both Father and the children filed
memoranda in opposition to the second motion for
permanent custody.
Id. at ¶ 2-7.
{¶ 3} Before resolution of the merits of FCCS' second motion for permanent
custody, on June 14, 2019, Mother filed in both cases a "Reply to Post-Permanent Custody
Denial Motions and Memorandums," which questioned whether the trial court had the
jurisdiction necessary to extend FCCS' temporary custody of the children. The trial court
denied that motion, and Mother, Father, and the children appealed. This court granted
FCCS' motion to dismiss the appeals for lack of a final, appealable order and noted the
second permanent custody hearing was slated for later that month (February 2020). In re
M.B. at ¶ 16-17. The parents and the children filed a motion to certify a conflict between
our decision and a case from another appellate district, In re D.J., 8th Dist. No. 107203,
2019-Ohio-1645.
{¶ 4} The conflict motion was not resolved, however, because on February 25,
2020, FCCS filed a new complaint in the trial court asserting the children are dependent
Nos. 20AP-488, 20AP-490, and 20AP-517 4
under R.C. 2151.04(C) and, within the body of the complaint, requesting permanent
custody of the children for the purposes of adoption. The complaint states the children
"were previously found to be Dependent Minors pursuant to [the previous 2016 case
numbers] due to housing concerns, parental substance abuse, and educational neglect."
(Feb. 25, 2020 Compl. at 1.) It continues, "parents have made little case plan progress
(father has not followed the recommendation for inpatient treatment, completed random
urine screens, made himself available for home visits, maintained stable housing, or
provided proof of income; mother has failed to complete random urine screens, failed to
successfully complete substance abuse treatment; parents were evicted from their home in
July of 2018 and were living in hotels before and after." (Compl. at 1.)
{¶ 5} The complaint discusses FCCS' previous motion for permanent custody and
the trial court's April 2019 denial of that motion and retention of temporary custody of the
children with associated new orders. The orders cited in the complaint include those
requiring Mother "to resume a parenting program, make arrangements for family
counseling between the children and herself, and be prepared to present evidence of an
executed lease and the furnishing of housing for the children and herself, and to present a
realistic budget"; and additional orders on May 6, 2019 requiring "mother and father to
comply with an instant drug screen, maintain[] all previous orders from the April 1, 2019
Judgment Entry, maintain[] all case plan orders, and * * * Mother to resume parenting and
arrange family counseling[,] * * * bring a detailed childcare plan and budget to the next
hearing[,] * * * [and] complete urine screens three times per week." (Compl. at 2.)
{¶ 6} The complaint states the Father, Father's brother, and sister-in-law were
ordered to not to be in the home, and on May 24, 2019, during an unannounced home visit,
the caseworker observed the sister-in-law in the home and "also observed [Father's] shoes
and belongings in the home" and notes that the caseworker "has not been permitted in the
home since May 24, 2019." (Compl. at 2.) The complaint states that Mother's address is
listed for Father in each of the cases and "[i]t is believed parents are still residing together."
(Compl. at 2.)
{¶ 7} Regarding drug abuse, the complaint states although Mother did not have a
current prescription for buprenorphine (suboxone), "[o]n May 30, 2019 mother tested
positive for buprenorphine"; "[o]n May 31, 2019, mother tested positive for buprenorphine
Nos. 20AP-488, 20AP-490, and 20AP-517 5
and marijuana"; Mother has missed 114 urine screens as of May 6, 2019; and mother is not
linked with substance abuse treatment at this time. Father tested positive for
amphetamines, buprenorphine, cocaine, and marijuana on May 6, 2019, "missed all 120
screens he has been scheduled for since then," and is not linked with a substance abuse
treatment program. (Compl. at 2.) The complaint also alleges that Father has warrants for
failure to appear out of three Franklin County Municipal Court cases involving possession
of a counterfeit controlled substance and operating a motor vehicle without a license and
that Mother has not provided proof of completion of a parenting class. The complaint states
that "[a]ll children remain in foster care together, where they are doing well." (Compl. at
2.)
{¶ 8} The complaint concluded that, in accordance with R.C. 2151.414(B)(1), the
children "have been in the temporary custody of FCCS for 12 or more months of a
consecutive 22 month-period" and, citing R.C. 2151.414(E)(1), (2), (4), and (14), "[t]he
children cannot be placed with their parents within a reasonable time and should not be
placed with the parents." (Compl. at 2.) Therefore, FCCS requested within the complaint
permanent custody of the children for the purposes of adoption.
{¶ 9} After the new complaint was filed, the trial court issued a temporary order of
custody of the children under a new case number (20JU-2288) pending an adjudication
hearing. (Mar. 3, 2020 Order at 1.) The order allowed Mother and Father supervised visits
with the children and ordered both Mother and Father to complete mental health
assessments, alcohol/drug assessments, and random drug screens. Father was ordered to
resolve his outstanding warrants.
{¶ 10} A few days later, on March 9, 2020, the trial court dismissed the 2016
dependency complaints "at complainant's request." (Mar. 9, 2020 Entries of Dismissal at
1.) The entry of dismissal remarks: "orders issued under 20 JU 2288." (Mar. 9, 2020
Entries of Dismissal at 1.)
{¶ 11} On July 20, 2020, the children filed a motion in limine requesting that
evidence from the 2016 dependency cases, "including case plans, orders and judgment
entries on those case numbers, and alleged lack of compliance in those cases, be excluded
from consideration in the adjudication of [the newly filed 2020] case." (July 20, 2020 Mot.
in Limine at 1.) The children believed that "the decision by FCCS to file a new complaint,
Nos. 20AP-488, 20AP-490, and 20AP-517 6
while resolving one legal issue (the two-year [temporary] custody limit), created new issues:
whether the dismissals had a preclusive res judicata effect on the former orders, and
whether the dismissals conclusively resolved the facts in those cases in favor of the parents
and children based on collateral estoppel." (Emphasis sic.) (July 20, 2020 Mot. in Limine
at 2.)
{¶ 12} An adjudication hearing on the children's dependency was then held in late
July 2020. Mother and Father, who were present and represented by counsel, testified.
Additional testimony was provided by the caseworker and the guardian ad litem ("GAL").
During the hearing, Father, Mother, and the children objected to the use of evidence from
the dismissed cases to adjudicate the children dependent; the trial court overruled the
objections, finding such evidence of the children's custodial history to be relevant to the
present dependency action. On August 10, 2020, the trial court overruled the children's
motion for limine and adjudicated them to be dependent pursuant to R.C. 2151.04(C). The
trial court maintained the temporary order of custody and set the matter for a dispositional
hearing on August 27, 2020.
{¶ 13} At the dispositional hearing, Mother and Father were again present and
represented by counsel. Mother, the caseworker, and the GAL testified; Father did not
testify. The trial court judge also conducted an in-camera interview of six of the seven
children as to their wishes on custody; one of the children did not wish to be interviewed.
The children at the time of the hearing ranged from six years old to sixteen years old.
{¶ 14} Following the dispositional hearing, the trial court issued on October 13,
2020 a decision and judgment granting permanent custody of the children to FCCS for
purposes of adoption. In doing so, the trial court first incorporated the findings of fact
issued for the adjudicatory hearing and noted it had ruled at the adjudicatory hearing that
the parents' compliance or noncompliance with the case plans and other orders of the now
dismissed cases, as well as orders issued under the instant case number, were all relevant
to the issue before the court at the disposition hearing: "Should the Court grant the Agency
permanent custody or an alternative disposition allowed by R.C. 2151.353? " (Oct. 13, 2020
Decision at 4.)
{¶ 15} In answering that question, the trial court first determined, in accordance
with R.C. 2151.414(E), that the children cannot be placed with either parent within a
Nos. 20AP-488, 20AP-490, and 20AP-517 7
reasonable period of time or should not be placed with the parents. Specifically, the trial
court found that clear and convincing evidence showed: "following the placement of the
Children outside of their home and notwithstanding reasonable case planning and diligent
efforts by the Agency to assist the Parents to remedy the problems that initially caused the
Children to be placed outside their home, the Parents have failed continuously and
repeatedly to substantially remedy the conditions causing the Children to be placed outside
their home," and "Parents have demonstrated a lack of commitment toward the Children
by failing to timely engage in and complete the reunification case plan." (Decision at 5,
citing R.C. 2151.414(E)(1) and (4).)
{¶ 16} The trial court then determined, in accordance with R.C. 2151.414(D),
granting permanent custody to FCCS for the purpose of adoption is in the best interest of
each of the children. The trial court considered the wishes of the children to return to their
parents and their apparent bond with the parents and with each other; their bond with their
foster parents but "to a lesser degree" than with their parents; the opinion of the GAL and
caseworker that the court grant FCCS permanent custody for purposes of adoption; the long
custodial history of the children, who were removed and have been in the same foster home
since April 27, 2016, and the corresponding need for permanency; that no relative is
available to obtain custody of the children; that the children are "fully adoptable" as a
sibling group either by their current foster family, who is considering adopting them, or by
others; and the children's current school placement where they are doing well generally and
where two children are on "IEP[s]." (Decision at 6, 7.) The trial court found no evidence
was offered as to the best interest factors listed in R.C. 2151.414(E)(7) through (11). Finally,
the trial court found FCCS "made reasonable efforts to prevent the removal of the Children
from the Children's home, eliminate the continued removal of the Children from the
Children's home, and safely return the Children to the Children's home." (Decision at 8,
citing R.C. 2151.419.)
{¶ 17} Mother, Father, and the children filed timely appeals. Those appeals were
consolidated for review.
II. ASSIGNMENTS OF ERROR
{¶ 18} Mother submits two assignments of error:
Nos. 20AP-488, 20AP-490, and 20AP-517 8
[1.] The evidence and filings from the prior case numbers,
and the current motion for permanent custody, were all
barred by res judicata.
[2.] The juvenile court's judgment terminating parental
rights and granting permanent custody to the agency is not
supported by clear and convincing evidence.
{¶ 19} Father submits four assignments of error:
1. The Court below erred in admitting evidence from two
previous cases that were actually litigated and decided that
held that the FCCS' motion for permanent custody should be
overruled and denied.
2. The Court below erred in finding that the children,
although arguably Dependent, could not be returned to
Mother's custody within a reasonable amount of time.
3. The Court erred in failing to consider adopting a
reunification case plan, and giving the parents the usual one
year period to comply with the requirements of the
reunification case plan.
4. The Court below erred in specifically failing to consider
other available dispositional alternatives, and failing to make
a separate finding of fact concerning why they were not
considered, even though on the record the Court said it would
do so.
{¶ 20} The children submit three assignments of error:
[1.] The trial court erred in allowing the agency to relitigate
facts from the former dependency cases, which had been
dismissed with prejudice.
[2.] The trial court erred in relitigating the disposition of
permanent custody.
[3.] Permanent custody was not proven by clear and
convincing evidence because the trial court had less drastic
dispositional options available.
III. STANDARD OF REVIEW
{¶ 21} "A trial court's determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence." In re K.L., 10th
Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-
1167, 2004-Ohio-3312. In a permanent custody case, the court of appeals "will not overturn
a permanent custody order when it is supported by competent, credible evidence."
(Citations omitted.) In re C.W., 10th Dist. No. 19AP-309, 2020-Ohio-1248, ¶ 51. The
Nos. 20AP-488, 20AP-490, and 20AP-517 9
reviewing court "must make every reasonable presumption in favor of the judgment and
the trial court's findings of facts." (Internal quotations omitted.) In re K.M., 10th Dist. No.
15AP-64, 2015-Ohio-4682, ¶ 13. Purely legal questions are reviewed de novo on appeal.
Zimmer v. Zimmer, 10th Dist. No. 00AP-383 (Feb. 27, 2001); see, e.g., In re N.M.P., 160
Ohio St.3d 472, 2020-Ohio-1458, ¶ 1, 13-29 (determining the meaning of the "twelve or
more months of a consecutive twenty-two-month period" requirement stated in R.C.
2151.414(B)(1)(d)).
IV. ANALYSIS
{¶ 22} A parent has a "fundamental liberty interest * * * in the care, custody, and
management of [his or her] child." Santosky v. Kramer, 455 U.S. 745, 753 (1982). The
Supreme Court of Ohio has noted "[p]ermanent termination of parental rights has been
described as 'the family law equivalent of the death penalty in a criminal case.' * * *
[P]arents 'must be afforded every procedural and substantive protection the law allows.' "
In re Hayes, 79 Ohio St.3d 46, 48 (1997), quoting In re Smith, 77 Ohio App.3d 1, 16 (6th
Dist.1991). "However, the parent's rights are not absolute." In re Shifflet, 4th Dist. No.
06CA13, 2006-Ohio-3576, ¶ 20. "[I]t is plain that the natural rights of a parent * * * are
always subject to the ultimate welfare of the child, which is the polestar or controlling
principle to be observed." (Internal quotation omitted.) In re Cunningham, 59 Ohio St.2d
100, 106 (1979). "Parental interests must be subordinated to the child's interest in
determining an appropriate disposition of any petition to terminate parental rights." Id."Consequently, the state may terminate parental rights when the child's best interest
demands such action." In re Shifflet at ¶ 20.
{¶ 23} "In Ohio, there are two methods by which a child may be committed to the
permanent custody of a public children services agency." In re Swisher, 10th Dist. No.
02AP-1408, 2003-Ohio-5446, ¶ 27, citing In re Ament, 142 Ohio App.3d 302 (12th
Dist.2001). "Under one method, an agency may first obtain temporary custody of the child
and then file a motion seeking permanent custody pursuant to R.C. 2151.413." In re H.H.,
10th Dist. No. 19AP-158, 2019-Ohio-4953, ¶ 45. "Or, pursuant to R.C. 2151.353(A)(4), an
agency may request permanent custody as part of its original abuse, neglect, or dependency
complaint." Id.Nos. 20AP-488, 20AP-490, and 20AP-517 10
{¶ 24} Here, FCCS sought within its complaint a disposition of permanent court
commitment for the purposes of adoption pursuant to R.C. 2151.353. (Compl. at 3-4.)
Therefore, R.C. 2151.353(A)(4) governs this analysis.1 See In re B.S., 4th Dist. No.
18CA890, 2018-Ohio-4645, ¶ 55 (finding R.C. 2151.353(A)(4), rather than R.C. 2151.413,
governed the analysis where the agency sought permanent custody by requesting it as the
initial disposition in its amended neglect and dependency complaint).
{¶ 25} In considering a complaint requesting permanent custody pursuant to R.C.
2151.353(A)(4), the trial court may commit a child adjudicated abused, neglected, or
dependent to the permanent custody of the agency if the court determines: (1) that the child
cannot be placed with one of the child's parents within a reasonable time or should not be
placed with either parent in accordance with R.C. 2151.414(E); and (2) that permanent
commitment is in the best interest of the child in accordance with R.C. 2151.414(D). R.C.
2151.353(A)(4); In re Swisher at ¶ 27. See, e.g., In re J.F., 8th Dist. No. 105504, 2018-Ohio-
96, ¶ 44-67, appeal not accepted, 152 Ohio St.3d 1467, 2018-Ohio-1795 (applying R.C.
2151.353(A)(4) analysis).
{¶ 26} Furthermore, R.C. 2151.353(I) directs that the trial court is prohibited from
issuing a dispositional order pursuant to R.C. 2151.353(A) that removes a child from the
child's home unless the court complies with R.C. 2151.419. R.C. 2151.419 provides (in
pertinent part) that, at any hearing held pursuant to R.C. 2151.353 "at which the court
removes a child from the child's home or continues the removal of a child from the child's
home, the court shall determine whether the * * * agency that filed the complaint in the
case, removed the child from [the] home, has custody of the child, or will be given custody
of the child has made reasonable efforts to prevent the removal of the child from the child's
home, to eliminate the continued removal of the child from the child's home, or to make it
possible for the child to return safely home." R.C. 2151.419(A). The agency bears "the
burden of proving that it has made those reasonable efforts." R.C. 2151.419(A).
{¶ 27} Here, the appellants' assignments of error can be distilled into four main
issues: (1) whether evidence and orders from the dismissed 2016 cases could be used to
support FCCS' 2020 complaint for dependency and permanent custody; (2) whether the
1This procedure is also called a "direct PCC." (Children's Brief at 5; Father's Brief at 17; Feb. 25, 2020 FCCS
Admis. Sheet at 1.)
Nos. 20AP-488, 20AP-490, and 20AP-517 11
trial court erred in making findings under R.C. 2151.414(E) and, relatedly, whether a
reunification case plan was required under the new case number; (3) whether the trial
court's best interest of the child determination was supported by clear and convincing
evidence; and (4) whether the trial court was obliged to consider options other than
granting permanent custody to FCCS.
A. Evidence and Orders From Dismissed 2016 Cases
{¶ 28} The children argue the trial court erred in allowing the agency to relitigate
facts from the former dependency cases, which the children assert was dismissed with
prejudice, and erred in allowing the disposition of permanent custody to be relitigated
considering that issue was adjudicated in the prior cases. Specifically, the children believe
because the entries of dismissal did not specify whether the dismissals were with or without
prejudice, and the trial court had denied previously FCCS permanent custody of the
children, the 2016 cases were dismissed with prejudice pursuant to Civ.R. 41(B)(3) and
operated as a judgment on the merits. Therefore, in the children's view, res judicata
prevented FCCS from refiling for dependency and permanent custody using the same facts
as before: "The trial court should have treated the current case as a new case based on facts
not previously litigated. [It] should not have been about a 'continuing course of conduct.' "
(Children's Reply Brief at 2.)
{¶ 29} Mother joins in the children's arguments, specifying that where a prior
dependency case is dismissed "with prejudice" after the court denied permanent custody,
FCCS cannot refile the same complaint and relitigate permanent custody on the same facts.
(Mother's Brief at 34.) Similarly, Father argues res judicata barred the trial court from
utilizing evidence from the 2016 cases to "partially justify" its dispositional entry granting
permanent custody. (Father's Brief at 12.) He believes that since this case is a "separate,
brand new filing," it was legally incorrect and fundamentally unfair to the parents to
"bootstrap" previous evidence from 2016 through 2018 to justify the award of permanent
custody to FCCS. (Father's Brief at 14; Father's Reply Brief at 7.)
{¶ 30} FCCS counters that the prior cases were dismissed without prejudice and
notes that the trial court in the dismissal entries expressly incorporated orders from the
2016 cases into the new case number. FCCS additionally contends that even if those cases
were dismissed with prejudice, it would have no legal effect since the case was tried based
Nos. 20AP-488, 20AP-490, and 20AP-517 12
on the current state of affairs including the parents' continuing course of conduct. FCCS
believes the doctrine of res judicata is not applicable to a dependent child case or to a
permanent custody proceeding, and evidence of progress on the prior case plans is proper
under R.C. 2151.414(D)(1)(d), (E), and case law.
{¶ 31} We agree with FCCS' position. Generally, res judicata does not "bar[] the trial
court from awarding permanent custody of [children at issue]" even where the trial court
previously denied the agency permanent custody of the children. In re Ament, 142 Ohio
App.3d at 310. While appellants argue the instant adjudication and disposition is different
since those determinations were, in their view, wholly based on evidence previously
litigated in their favor under the 2016 case numbers, this premise is not supported by the
record. Both the hearing on the adjudication and the disposition did include "current
events" as of the respective hearing dates. (See Children's Brief at 15.) At those hearings,
testimony was provided on the current stability of housing, compliance with the March 3,
2020 court order relating to drugs screens, mental and alcohol and drug assessments and
recommended treatments, and Father's progress on resolving his warrants, for example.
The appellants agree that current events serve as a proper basis for a permanent custody
determination.
{¶ 32} Furthermore, the trial court's consideration of these current events within the
greater context of the children's custodial history, which spanned over four years and
multiple case numbers, was not barred by res judicata or otherwise in error. Res judicata
"operates to bar litigation of all claims which were or might have been litigated in a first
lawsuit." (Internal quotations omitted.) Kelm v. Kelm, 92 Ohio St.3d 223, 227 (2001). As
pointed out by the children, res judicata is not entirely inapplicable in the context of the
juvenile law. See, e.g., In re A.R., 10th Dist. No. 16AP-482, 2017-Ohio-1575 (finding res
judicata barred the state's second motion to relinquish jurisdiction over defendant juvenile
and bind him over to the common pleas court under R.C. 2152.12 because the denial of the
state's first motion was the functional equivalent of a dismissal of a criminal indictment and
constituted a final, appealable order under R.C. 2945.67(A)). However, we find the
circumstances here, a custody case predicated on the best interests of the children, is
distinct from the situation presented in In re A.R. and renders the application of res judicata
inappropriate in this case.
Nos. 20AP-488, 20AP-490, and 20AP-517 13
{¶ 33} "The very purpose of res judicata is to deter the repeated litigation of resolved
issues, thereby ensuring finality in judgments and the conservation of judicial resources.
* * * However, in the area of custody and visitation, we sacrifice finality and some of our
limited judicial resources in order to secure a higher value—the best interests of children."
(Emphasis sic.) Kelm at 227. Thus, unlike typical actions, "permanent-custody
proceedings require the court to look at the past, present and future when determining the
child's best interests and whether the child can be placed with a parent within a reasonable
time period." In re J.G.S., 1st Dist. No. C-180611, 2019-Ohio-802, ¶ 27. The parents'
"pattern of conduct" is relevant to a permanent custody determination. Id., citing In re
Stephens, 7th Dist. No. 2001 CA 56, 2002-Ohio-3057, ¶ 27.
{¶ 34} This court has adopted this position. " '[N]othing prohibits a court from
basing a permanent custody decision upon a parent's past history with a children services
agency. In fact, courts have recognized that a parent's past history is one of the best
predicators of future behavior.' " In re M.W., 10th Dist. No. 19AP-769, 2020-Ohio-5199,
¶ 48, quoting In re West, 4th Dist. No. 05CA4, 2005-Ohio-2977, ¶ 28. In re M.W. expanded
at length on this concept:
[A] parent's "past parenting history and her ability to comply
with prior reunification plans regarding her other children
[are] relevant considerations in the juvenile court's
dispositional determination to commit [mother's current child]
to the permanent custody of the Department." In re Brown, 60
Ohio App.3d 136, 139, 573 N.E.2d 1217 (1st Dist.1989). See In
re Vaughn, 4th Dist. No. 00CA692, 2000 Ohio App. LEXIS
5938 (Dec. 6, 2000) (noting that "[t]o further the interests of
the children, the court must consider any evidence available to
it, including a parent's pattern of conduct," as "[s]ome of the
most reliable evidence for the court to consider is the past
history of the children and the parents"); In re J.B., 6th Dist.
No. S-14-005, 2015-Ohio-460, ¶ 96 (holding that
"[i]nformation about the family's history with children
services," including testimony about "past referrals regarding
the family which were unrelated to this case," were "relevant
and admissible in a permanent custody action"); In re T.W.,
10th Dist. No. 10AP-897, 2011-Ohio-903, ¶ 28 (holding that
appellant's "failure to complete case plan objectives with
respect to T.W.1, T.W.2, T.J., and N.H. [was] clearly relevant to
the determination of whether appellant ha[d] remedied the
problems that caused [her youngest child] C.H.'s removal").
Nos. 20AP-488, 20AP-490, and 20AP-517 14
Id. at ¶ 28. Thus, in In re M.W., we considered the "entire custodial history" of the child
involved, including events occurring under previous case numbers. Id. at ¶ 1-3, 31, 48-50.
Likewise, in In re H.H., where FCCS refiled a complaint alleging children were dependent
and requested permanent custody of the children within the complaint, this court
determined both the trial court's dependency determination and the disposition of
permanent custody were supported by "the entirety of the evidence," including testimony
as to the parent's compliance with case plans filed under other case numbers. Id., 2019-
Ohio-4953, at ¶ 50-62 (dependency determination); ¶ 65-83 (disposition determination).
{¶ 35} Moreover, the relevancy and importance of the full custodial history of the
children, including parents' compliance with case plans issued under other case numbers,
is expressed statutorily and supports the overriding goal of such actions to reach a
disposition that is in the children's "best interests." In re Cunningham, 59 Ohio St.2d at
105-06. See R.C. 2151.414(E) (a trial court "shall consider all relevant evidence" 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 pursuant to R.C. 2151.353(A)(4)); R.C.
2151.414(D)(1)(c) (the third best interest factor expressly states the court must consider the
"custodial history of the child"). We note this information could be used to benefit a parent
in evidencing compliance and progress (as Mother attempted to do here at trial via the case
plans issued in the prior 2016 cases) or work against the parent by demonstrating a long-
term course of conduct of noncompliance, lack of progress, and instability that supports the
need to establish permanency for the children elsewhere (as argued by FCCS in this case).
{¶ 36} Considering all the above and having assessed the particular arguments of
each party, we conclude in this case: the trial court did not err in determining the current
complaint for dependency and permanent custody was not barred by its prior denial of
permanent custody in the dismissed 2016 cases; and the trial court did not err in admitting
and basing its determinations, in part, on testimony concerning the family's history with
FCCS, including the events and circumstances surrounding the 2016 cases, and orders from
those cases.
{¶ 37} Accordingly, Mother's first assignment of error, Father's first assignment of
error, and the children's first and second assignments of error are overruled.
Nos. 20AP-488, 20AP-490, and 20AP-517 15
B. The Trial Court's Findings Under R.C. 2151.414(E) and the Lack
of A New Case Plan
{¶ 38} As provided in the legal framework explained above, in considering a
complaint requesting the disposition of permanent custody, a juvenile court must
determine, in accordance with R.C. 2151.414(E), whether clear and convincing evidence
shows "the child cannot be placed with one of the child's parents within a reasonable time
or should not be placed with either parent." R.C. 2151.353(A)(4); In re H.H., 2019-Ohio-
4953, at ¶ 47, 65. In this case, the trial court found R.C. 2151.414(E)(1) and (4) were met.
Those provisions state in pertinent part:
In determining * * * 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, * * * for the purposes of division (A)(4) of
section 2151.353 of the Revised Code that one or more of the
following exist as to each of the child’s parents, the court shall
enter a finding that the child cannot be placed with either
parent within a reasonable time or should not be placed with
either parent:
(1) Following the placement of the child outside the child’s
home and notwithstanding reasonable case planning and
diligent efforts by the agency to assist the parents to remedy the
problems that initially caused the child to be placed outside the
home, the parent has failed continuously and repeatedly to
substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the
parents have substantially remedied those conditions, the
court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and
material resources that were made available to the parents for
the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
***
(4) The parent has demonstrated a lack of commitment toward
the child by failing to regularly support, visit, or communicate
with the child when able to do so, or by other actions showing
an unwillingness to provide an adequate permanent home for
the child.
Nos. 20AP-488, 20AP-490, and 20AP-517 16
R.C. 2151.414(E). "A trial court may base its decision that a child cannot or should not be
placed with either parent within a reasonable time upon the existence of any one of the
above factors. The existence of one factor alone will support a finding that the child cannot
be placed with either parent within a reasonable time." In re Lilley, 4th Dist. No. 04CA22,
2004-Ohio-6156, ¶ 28.
{¶ 39} Mother argues the trial court's findings under R.C. 2151.414(E) were in error
since she has "largely remedied the conditions causing removal and demonstrated a
commitment to the children through consistent visitation and the maintenance of a strong
bond" with the children. (Mother's Brief at 39.) We disagree.
{¶ 40} First, the trial court's finding that both parents have demonstrated a lack of
commitment toward the children is supported by competent, credible evidence. Mother
believes she demonstrated commitment to the children by regularly visiting and
communicating with the children, maintaining a strong bond with them, and making
progress on her case plans. Regarding the case plans, Mother asserts that after the children
were removed, she completed a parenting class and "worked on her drug issue" through
multiple providers. (Mother's Brief at 43.) She notes the trial court's prior denial of
permanent custody and her progress since that time: even with COVID-19 related
challenges, such as being laid off, she has "found a way to maintain an income[,] stay in the
same house," and maintain her visits and bond with the children. (Mother's Brief at 43.)
Father adds that Mother "substantially complied" with the prior case plans. (Father's Brief
at 16.)
{¶ 41} Mother's contentions about her consistently visiting and communicating
with the children and maintaining bonds with them is not in dispute. The caseworker and
the GAL confirmed her account in this regard. Whether Mother completed a parenting
class is questionable: she testified to completing the parenting class but did not provide a
certificate or other proof of compliance to her caseworker.
{¶ 42} More importantly, however, is that Mother's assertions of her demonstrated
commitment to the children avoid the main concerns of the trial court, namely: her actions
showing an unwillingness to provide an adequate permanent home for the children.
Mother has not demonstrated her ability to independently maintain stable housing or
remove drug-related concerns from her home. Mother did show that, after years of living
Nos. 20AP-488, 20AP-490, and 20AP-517 17
"back and forth" between hotels and an eviction from an apartment, she had been in the
same home for over one year (March 2019 through disposition hearing in August 2020).
(July 16, 2020 Tr. at 76.) However, Mother was not the source of the money to pay the rent.
A year's worth of rent was paid by a trust fund set up for Father; Mother is unemployed and
receives approximately $192 per week in unemployment benefits (stimulus money briefly
provided her with $600 more). By the time of the disposition hearing, Mother was $2,462
behind in rent and, in the trial court's view, did not provide a credible plan to remedy that
situation. She testified, according to the trial court "[i]ncredibly" and without
documentation, that she had $10,000 in her own bank account but said she is opting not
to use that money to secure her housing situation (even though she knew stable housing
would be a consideration for her children's custody). (Decision at 4.) She also told the court
she would be "current" on her lease after she brought a check from the trust to the landlord
that day but did not have the check with her. (Aug. 27, 2020 Tr. at 150.) Mother said she
had the option of using trust money to secure the lease through the end of the year and
believes she has "the ability to stay stable for at least the end of [2020]." (Aug. 27, 2020 Tr.
at 197.) The trial court judge ultimately "discounted any testimony by Mother" concerning
her ability to maintain stable housing. (Decision at 4.) The GAL and caseworker
additionally testified to their concerns for Mother's current housing situation being
sustainable: as soon as the trust fund rent was finished, Mother fell behind on rent, which
is consistent with her pattern of not being able to provide stable housing in the past.
{¶ 43} Beyond the financial concerns for Mother's ability to provide housing, the
record shows instability and safety concerns related to the people Mother allows access to
the home, including Father and her brother-in-law and sister-in-law. Record evidence
overwhelmingly shows Father has an unresolved and very serious drug addiction: he
admitted to being addicted to drugs since he was 15, was recommended but never
completed inpatient treatment, tested positive in May 2019 for cocaine, marijuana,
amphetamines, and buprenorphine, and has refused to test to support his claims he is
sober, including refusing to screen at the hearings. Father suffers from seizures which may
be in part due to his drug addictions and has told Mother he has tried to kill himself.
{¶ 44} The trial court found that Father lives at the home and "will continue to do so
until they are evicted for nonpayment of rent" and, as such, "[t]he home is not suitable for
Nos. 20AP-488, 20AP-490, and 20AP-517 18
the children." (Oct. 13, 2020 Adjudication Findings at 10.) This finding is supported by the
record. The caseworker testified she believes Father lives at the home, and their claims of
living apart are a ruse to allow the Mother to get the children back. It is undisputed that
Father receives his mail at the home and keeps his belongings there. Mother says she sees
him "[a]lmost every day" to eat and do laundry, and he stays (overnight) at her house
"maybe once a week." (Aug 27, 2020 Tr. at 211.) She admits this arrangement has been
going on since she got the house even though it violated the May 6, 2019 court order, and
even though, in the trial court judge's words, she was "told on numerous occasions that if
[she] wanted to get custody of the children returned to [her], [she was] going to have to be
completely separate from her husband." (Aug. 27, 2020 Tr. at 238.) Mother further
testified the judge was "absolutely correct" that she was more involved with Father than
before, that she loves Father, that she is his caretaker, that she "would never keep [the
children] away from him," and would not rule out him living with her. (Aug. 27, 2020 Tr.
at 216, 239.)
{¶ 45} Mother also has not effectively set boundaries with her brother-in-law and
sister-in-law, who also are addicted to drugs. The sister-in-law lived with Mother at the
house for three months before Mother made her leave because the caseworker saw her
there, and the court order said she could not be in the home. Mother testified her brother-
in-law would "come and go" from the house and would also break into her house and steal
from her. (July 16, 2020 Tr. at 114; Aug 27, 2020 Tr. at 201-07.) In one instance, her in-
laws broke the front door window, opened the door, and "stole everything that they could
get their hands on." (Aug. 27, 2020 Tr. at 201-02.) The caseworker testified at an
unannounced August 2020 home visit, Mother and Father did not come to the door, but
she observed a front bedroom window that was completely missing glass, and she smelled
marijuana coming from the window. Mother later blamed her brother-in-law, who she said
was frequently breaking into the home. Mother also blames her in-laws for introducing
Father to "meth," which led to at least one argument at Mother's house where she "basically
[got] physical with the sister-in-law because they were using meth and giving it to [Father]."
(Aug. 27, 2020 Tr. at 214-15.) Despite these issues, Mother was unclear about whether she
ever filed charges against her in-laws and then asked her brother-in-law to assist her in
Nos. 20AP-488, 20AP-490, and 20AP-517 19
moving furniture from storage to the house in advance of the instant permanent custody
hearing.
{¶ 46} Mother's stance on her own history of drug use also caused the caseworker
concern. While Mother tested negative on a drug screen administered the day of the
adjudication hearing, Mother admitted to using more Xanax than prescribed in the past
(2016), using marijuana approximately one year before the hearing, being put on two
suboxone programs by health practitioners, and not following the latest recommendation
of her doctor to take suboxone. Despite this history, Mother does not think she currently
has a drug or alcohol issue and believes she has never had a drug or alcohol issue in the
past. (Aug. 27, 2020 Tr. at 183, 188, 226.) She blames FCCS for removing her kids and a
parent mentor for her prior issue with Xanax. Furthermore, while recognizing she needs
help with her mental health due to the "damage from losing [her] kids" (she also was
diagnosed prior to having kids with "Bipolar and Manic Depression"), Mother has not been
proactive in getting that help leading up to the custody hearings. (Aug. 27, 2020 Tr. at 178.)
At the time of the hearing, Mother was not on medication to treat her mental health issues,
last attended counseling other than with her pastor in 2018, and had a mental health
assessment scheduled after the custody proceedings.
{¶ 47} Furthermore, even though Mother moved into the home in March 2019, she
had not yet readied the home to accommodate seven children when the dispositional
hearing arrived in August 2020. Mother testified she had removed the stacked clutter in
the bedrooms the caseworker described as "hoarding" and "physical hazards," and there
are now four beds and most of the dressers available for the kids in the three bedroom
home. (July 22, 2020 Tr. at 92.) The remaining beds and dressers remain in a storage unit
she describes as being located across the street; Mother does not have a license and had
trouble arranging help to move the additional furnishings to the house. Mother's
description of the home could not be confirmed by the caseworker since the caseworker's
multiple attempts to schedule a visit to the home preceding the custody hearing were
unsuccessful.
{¶ 48} Overall, we cannot agree with Mother and Father that they demonstrated
commitment to their children when clear and convincing record evidence of their actions
showed "an unwillingness to provide an adequate permanent home for the child[ren]." R.C.
Nos. 20AP-488, 20AP-490, and 20AP-517 20
2151.414(E)(4). Therefore, we conclude the trial court did not err in finding the children
cannot be placed with one of the children's parents within a reasonable time or should not
be placed with either parent pursuant to R.C. 2151.414(E). Because we find R.C.
2151.414(E)(4) to be met, we need not review the trial court's finding under R.C.
2151.414(E)(1). See In re Destiny, 6th Dist. No. L-08-1147, 2008-Ohio-5292, ¶ 26 ("A
proper finding of any one of the R.C. 2151.414(E) factors is sufficient to sustain a conclusion
that the children cannot now, or in a reasonable time, be united."); In re Lilley, 2004-Ohio-
6156, at ¶ 28 ("The existence of one factor alone will support a finding that the child cannot
be placed with either parent within a reasonable time.").
{¶ 49} In an argument relevant to the issue of the trial court's findings under R.C.
2151.414(E), Father essentially contends the trial court erred in finding the children could
not be returned to Mother's custody within a reasonable amount of time since no court-
ordered reunification case plan exists under the current case number. According to Father,
"[w]ithout such a template, neither parent knows exactly what they are required to do to
regain custody of their children," and the trial court erred in failing to allow the parents the
"usual amount of time under statutory law to complete a reunification case plan." (Father's
Brief at 17, 19.) Father believes the facts of the instant case are in line with In re Smart, 21
Ohio App.3d 31 (10th Dist.1984), where this court reversed permanent custody of a child in
favor of an agency and remanded the matter for the trial court to modify its order to a
temporary court commitment with a reunification plan. The children join Father's
argument in their reply brief, arguing that because the former cases were dismissed, a new
case plan had to be approved by the trial court; the children assert the parents "were not
afforded an opportunity to even begin working on the new case plan before their rights were
terminated." (Children's Reply Brief at 5.) Mother touches on this issue when pointing out
that no court-ordered case plan was in place for the 2020 case, and the children were
adjudicated dependent one month before the permanent custody trial. This argument is
made, however, in the context of her contention that "[i]f this Court were only to look at
2020, there would be no justification for terminating parental rights." (Mother's Brief at
39.)
{¶ 50} Initially, we note that appellants do not argue that FCCS erred by using the
procedure of requesting permanent custody pursuant to R.C. 2151.353(A)(4) in this case
Nos. 20AP-488, 20AP-490, and 20AP-517 21
and, as described in the fourth issue below, Mother, Father, and children advocate for
alternative dispositions that are (arguably) only available because FCCS filed a new
complaint.
{¶ 51} Furthermore, we disagree with Father and children that the lack of a court-
ordered reunification case plan under this case number requires reversal here. In the case
sub judice, FCCS filed a complaint for dependency also requesting a disposition of
permanent custody pursuant to R.C. 2151.353(A)(4). Ohio appellate courts facing this issue
have found that a trial court is generally not obligated to order a case plan where an agency
in its complaint seeks permanent custody pursuant to R.C. 2151.353(A)(4). See In re A.R.,
8th Dist. No. 109482, 2020-Ohio-5005, ¶ 31 (stating R.C. 2151.412 does not require that a
court order a reunification plan when it makes disposition pursuant to R.C.
2151.353(A)(4)); In re B.S., 2018-Ohio-4645, at ¶ 62 (noting that district has held that a
reunification case plan is not generally required in the context of a complaint for permanent
custody); In re S.S., 6th Dist. No. L-16-1234, 2017-Ohio-4474, ¶ 83 (finding that because
the agency proceeded pursuant to R.C. 2151.353(A)(4), it did not have to prepare a case
plan for the parent); In re M.C., 12th Dist. No. CA2004-04-008, 2004-Ohio-4782, ¶ 29
(holding the trial court did not err by not requiring a reunification plan to be filed and
implemented since it was determining a disposition pursuant to R.C. 2151.353(A)(4)).
{¶ 52} Regardless, we do not find appellants were prejudiced by the lack of a
formally ordered case plan under the new case number here. Contrary to Father's position,
the testimonies of Mother and Father showed they were fully aware that, to reunite with
their children, they needed to remedy the conditions that led to their removal, needed to
follow the previous case plans prior to the March 9, 2020 dismissals, and understood they
needed to follow other court orders, including the March 3, 2020 orders under the new case
number. As previously discussed, the trial court in this case was not limited to
considerations of just current case plans but appropriately considered "all relevant
evidence," including the parents' compliance or noncompliance with the previous case
plans and orders in addition to new orders issued under the instant case number. R.C.
2151.414(E). As provided above, when all relevant evidence is considered, the trial court's
finding that R.C. 2151.414(E)(4) is met is not against the manifest weight of the evidence.
Nos. 20AP-488, 20AP-490, and 20AP-517 22
{¶ 53} Finally, contrary to Father's position, we find In re Smart distinguishable. In
that case, a mother voluntarily signed papers granting temporary custody of her newborn
child to an agency. Because the whereabouts of the father were unknown, the agency could
not seek permanent custody at that time. About six months later, the mother sought to
regain custody of her child, who was still in foster care. In that interim period, the agency
neither took further steps to seek permanent custody nor took steps to reunite the child
with the mother. After their first attempt to adjudicate the child dependent failed, the
agency filed a second complaint seeking a permanent commitment, and the trial court
found the child to be a dependent minor and ordered permanent custody to the agency.
{¶ 54} On appeal of that order, this court, in relevant part, first found that "failure
by [the agency] to file a comprehensive reunification plan does not bar its action for
immediate permanent commitment under R.C. 2151.353(A)(4)." In re Smart, 21 Ohio
App.3d at 35. However, we then found that:
Even though a juvenile court does have the alternative
immediately to grant permanent custody to an appropriate
state agency upon determination that a child is abused,
neglected or dependent under R.C. 2151.353(A)(4),
permanent custody should only be granted at the initial
disposition hearing under extreme situations where
reunification is not possible. Specifically, a court cannot reach
the determination under R.C. 2151.353(A)(4) that "the child
will continue to be a child without adequate parental care if a
reunification plan were prepared" where there has been no
good faith effort to reunite the child with his parents or
evidence that such an effort to reunite would be futile.
Id. Therefore, this court reversed the trial court order and, in doing so, emphasized the fact
that the visitations set up by the agency demonstrated a lack of good faith and that the
agency social worker admitted the agency had never made a serious attempt to reunite the
child with her natural mother. We remanded the cause "with instructions to modify its
dispositional order to provide for temporary commitment and a reasonable reunification
plan." Id. at 36.
{¶ 55} The instant case is easily distinguishable from In re Smart. We first note that
In re Smart was decided under the former language of R.C. 2151.353(A)(4) and under a
"good faith" standard that was later superseded by statute. See In re Stephens, 12th Dist.
No. CA91-05-077 (Aug. 24, 1992), fn. 2 (noting the relevant portions of R.C. Chapter 2151
Nos. 20AP-488, 20AP-490, and 20AP-517 23
were amended effective January 1, 1989). Moreover, unlike in In re Smart—a case in which
the parent never got a chance to prove herself—even after over four years of agency efforts
to reunify the children with the parents, including case plans and orders under previous
case numbers and an order under the new case number, the parents in this case have not
implemented (and continue to reject) actions that would provide an adequate permanent
home for the children. Compared to the situation in In re Smart at 35, this case has reached
an "extreme" where record evidence shows that the children cannot be placed with either
of the parents "within a reasonable time or should not be placed with either parent." R.C.
2151.353(A)(4), citing R.C. 2151.414(E). Considering all the above, Father's argument
regarding In re Smart lacks merit.
{¶ 56} Accordingly, Father's second and third assignments of error are overruled.
To the extent Mother's second assignment of error and each of the children's assignments
of error incorporate this issue, those assignments of error are overruled.
C. Best Interest of Child
{¶ 57} A juvenile court considering an agency's request for permanent custody as
part of its original abuse, neglect, or dependency complaint must also determine whether
permanent custody is in the child's best interest pursuant to R.C. 2151.414(D)(1). R.C.
2151.353(A)(4); In re H.H., 2019-Ohio-4953, at ¶ 47, 71. In determining the best interest
of a child for the purposes of R.C. 2151.353(A)(4), "the court shall consider all relevant
factors, including, but not limited to":
(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 * * *;
(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).
Nos. 20AP-488, 20AP-490, and 20AP-517 24
{¶ 58} In this case, Mother and children initially assert that when the "improper[]"
evidence and filings from the prior case numbers are removed from consideration, no basis
supports the award of permanent custody. (Mother's Brief at ii, 38.) We have already
concluded, contrary to appellants' position, the evidence and filings pertaining to the 2016
cases were properly considered by the trial court. Therefore, the premise of this argument
lacks merits.
{¶ 59} Mother also argues it is not in the best interest of the children to grant
permanent custody to FCCS for the purposes of adoption where, "mother has maintained
stable housing and demonstrated sobriety, the family unit is strongly bonded, and the
children all wish to be returned to their parents." (Mother's Brief at ii, 44.) Children make
similar assertions in their third assignment of error.
{¶ 60} Specifically, Mother believes that under R.C. 2151.414(D)(1)(a) and (b), the
interactions of the children with their parents and the children's wishes to return to their
parents should carry "immense weight," particularly considering the strong bonds the
parents maintained with the children over four years of being separated. (Mother's Brief at
45.) The trial court found that the children were "very bonded" with their parents and each
other and that their interactions were appropriate. (Oct. 13, 2020 Adjudicatory Hearing
Findings at 15.) These findings are supported by the testimony of the caseworker and the
GAL. However, "resolution of [R.C. 2151.414(D)(1)(a)] is not limited to merely the bond
between child and parent." In re K.R., 10th Dist. No. 18AP-633, 2019-Ohio-2192, ¶ 81.
Here, the trial court also noted testimony the children were bonded, but to a lesser extent,
with the foster parents and found no evidence the children could not bond with other
caregivers in a home setting.
{¶ 61} As to the wishes of the children, the trial court acknowledged the children
generally wished to be returned to their parents but noted the oldest child felt that by
returning home she could help her Mother care for her Father and siblings, that one of the
children expressed a desire to stay in their current school district and was under the
impression her parents would try to move there, and that the youngest children were not
very communicative. The trial court also noted the caseworker and GAL, even while
acknowledging the bonds and wishes of the children, ultimately recommended permanent
custody be granted to FCCS.
Nos. 20AP-488, 20AP-490, and 20AP-517 25
{¶ 62} In terms of the need for a legally secure placement under R.C.
2151.414(D)(1)(d), Mother argues she has established a stable home with adequate bedding
and clothing for the children and states she is able to provide financially for the children by
"utilizing multiple resources" and actively seeking employment. (Mother's Brief at 46.)
Mother notes the children are older now and more capable of caring for themselves, and
the older children are "offering to assist with the younger children and already looking for
jobs." (Mother's Brief at 46.) Similarly, the children argue Mother has had stable housing
for over one year, is current in rent and no longer relies on Father's trust fund, has $10,000
in the bank, could ready her home for the children in a day, has tested "clean" for drugs,
and could monitor Father around the children. (Children's Brief at 20.)
{¶ 63} For the many reasons we previously detailed in relation to the trial court's
findings under R.C. 2151.419(E), we disagree. First, the trial court discounted any
testimony by Mother regarding her ability to maintain stable housing and often found her
testimony to lack credibility both in terms of her finances and her assertions that Father
does not live in the home. The trial court was in the best position to view Mother as a
witness, and we defer to the trial court in this respect as the trier of fact. In re T.M., 10th
Dist. No. 18AP-943, 2020-Ohio-815, ¶ 10 (stating the weight to be given the evidence and
the credibility of the witnesses are primarily questions to be answered by the trier of fact
since they may observe their demeanor, voice inflections, and gestures).
{¶ 64} Moreover, our review of the record supports a determination under R.C.
2151.414(D)(1)(d) that the children have a pressing need for a legally secure permanent
placement and that such a placement cannot be achieved without a grant of permanent
custody to FCCS. First, the total length of time involved in this case strongly supports the
children's need for a legally secure permanent placement at this juncture. The trial court
found that "after over four years of waiting for permanency, the Children must not be left
waiting any longer for Parents to address the needs that caused the Children to be placed
in the Agency's temporary custody." (Decision at 7.) We note that Mother does not dispute
that R.C. 2151.414(D)(1)(c), the custodial history of the children, weighs in favor of granting
permanent custody to FCCS. We agree with the trial court and find the children, who were
removed from their parent's home in April 2016, have a vital need for a legally secure
permanent placement at this time.
Nos. 20AP-488, 20AP-490, and 20AP-517 26
{¶ 65} Second, the trial court's finding that permanency cannot be achieved without
a grant of permanent custody to FCCS is supported by the record. Initially, we point out
that " 'a court is not limited to considering only current compliance with case plan objectives
related to housing and income in its analysis of the child's need for a legally secure,
permanent placement.' " In re M.W., 2020-Ohio-5199, at ¶ 40, quoting In re K.R., 2019-
Ohio-2192, at ¶ 87. See In re K.Z., 4th Dist. No. 19CA22, 2020-Ohio-1013, ¶ 76 (observing
that "[e]ven if at times the parents lived in a stable home, they were unable to maintain a
stable home throughout the case"); In re T.M. at ¶ 25 (holding that all the "positive actions"
mother took with respect to her case plan were "in vain given her inability to provide a safe
and stable home for the children").
{¶ 66} The record does not show, as Mother and children argue, that Mother has
established a stable home with adequate provisions for the children, that she is financially
stable, and that she has demonstrated her sobriety. Mother admits that "father may still
have a drug problem" but does not argue on appeal that Father will be kept away from the
children. (Mother's Brief at 42.) Rather, she thinks the older children, who are aware of
Father's drug problem, will simply be able to "watch for that." (Mother's Brief at 47.)
Contrary to Mother's assertion, the record demonstrates Father is addicted to drugs and
his addiction is of a very serious nature. He admitted to being addicted to drugs since he
was 15, was recommended but never completed inpatient treatment, tested positive in May
2019 for cocaine, marijuana, amphetamines, and buprenorphine, and has refused to submit
to drug screens to support his claims he is sober. The trial court concluded Father lived at
the home despite Mother's contentions otherwise. Mother admitted to allowing Father
frequent access to the home, including staying there on a weekly basis. She is his caretaker.
Mother testified she would never keep the children away from Father, would not rule out
Father living with her in the future, and did not believe she needed to monitor the children
with Father closely but, rather, she could just watch Father for signs he was using drugs and
have the children report back to her on his behavior. She testified she was "never worried"
about Father's drug use around the children or Father "being [inebriated] to the point that
he couldn't parent." (Aug. 27, 2020 Tr. at 236, 237.) Mother was worried about the
children being alone with Father if he had a seizure.
Nos. 20AP-488, 20AP-490, and 20AP-517 27
{¶ 67} Mother also testified to her brother-in-law and sister-in-law being addicted
to drugs, breaking into the home, stealing from the home, and being a negative influence
on Father. Furthermore, while Mother claims she set up some of the children's beds and
dressers and resolved physical hazards in the home—the bedrooms were packed with
clutter to the point the door could hardly open—she delayed appointments repeatedly, and
the caseworker could not confirm the home was safe and had provisions suitable for seven
children to return there. In other words, despite living in the home for over one year,
Mother was unable to establish its suitability for the children. Mother also did not
demonstrate that the year of stable housing was something she could sustain herself. She
did not pay the rent for the home from her own funds, was over $2,000 behind in rent at
the time of the dependency hearing, and was unemployed. Mother testified to applying to
several jobs but did not know the status of those attempts; her previous job at a restaurant
accommodated her admitted tendency to be late by allowing her a one-hour buffer on
arrival time. Mother does not have a license and blamed her tardiness on public
transportation. Mother is concerned about her own mental health but was not in treatment
at the time of the dependency hearing, and did not believe she ever had an issue with drugs
despite admitting to using more Xanax than prescribed in the past, using marijuana
approximately one year before the hearing, being put on two suboxone programs by health
practitioners, and not following the latest recommendation of her doctor to take suboxone.
{¶ 68} Mother and children believe there is no other real possibility of placing the
children together due to the size of the group and the "reluctan[ce]" of the foster parents.
(Mother's Brief at 46.) However, "although 'the likelihood that a child will be adopted may
be considered in determining the child's best interest,' the statutory provisions 'governing
permanent custody simply do not require an agency to prove that adoption is likely.' " In
re K.R., 2019-Ohio-2192, at ¶ 91, quoting In re V.B.-S., 10th Dist. No. 13AP-478, 2013-Ohio-
5448, ¶ 51. In this case, adoption by the foster family is still possible, and it's undisputed
the children are doing well in the foster home and in their new school district, where some
of the children take advantage of extracurricular activities. The caseworker testified the
children love school and are bonded to the foster parents, and the foster parents love the
children, want to be able to keep them together, and were still considering adopting the
children. Furthermore, the caseworker testified that should adoption by the current foster
Nos. 20AP-488, 20AP-490, and 20AP-517 28
family not come to fruition, in her opinion, the children are adoptable as a group: she had
transferred to the agency's adoption department and has specifically seen adoptive parents
who indicate a willingness to adopt groups of their size. There is no evidence the group is
"likely" to be separated from each other, as Mother contends, or the group "would likely
remain in limbo," as the children contend. (Mother's Brief at 47; Children's Brief at 22.)
{¶ 69} The "overriding concern" in any child custody case is to reach a disposition
that is in the child's best interests. In re Hitchcock, 120 Ohio App.3d 88, 102 (8th
Dist.1996). In this case, while the children are bonded with the parents and they desire to
return to their parents' custody, the children need a legally secure permanent placement,
and this record clearly shows that such a placement cannot be achieved without a grant of
permanent custody to FCCS. After our review of the case at bar, we believe that ample
competent and credible evidence supports the trial court's decision that it is in the best
interest of the children pursuant to R.C. 2151.414(D)(1) to award permanent custody of the
children to FCCS for purposes of adoption.
{¶ 70} Accordingly, Mother's second assignment of error and the children's third
assignment of error are overruled to the extent they challenge the trial court's best interest
of the child determination.
D. Whether the Trial Court Was Obliged to Consider and Make
Findings of Fact on Options Other Than Granting Permanent
Custody to FCCS
{¶ 71} The children contend since FCCS filed a new complaint, the trial court had
every dispositional option open under R.C. 2151.353, and the trial court "first should have
considered granting legal custody to the mother" on the facts of this case or, "[a]t the very
least, * * * ordered a [temporary court commitment, hereinafter "TCC"] to the agency."
(Children's Brief at 20, 21.) The children argue permanent custody to FCCS would create
less of a sense of permanency than other dispositional options. Father argues the trial court
erred in failing to make a finding of fact that "other dispositional alternatives would be
considered, and if rejected, explain why." (Father's Brief at 20.) "At a minimum," he asks
this court to reverse and remand the case to the trial court to make such findings of fact.
(Father's Brief at 21.) Mother similarly states "the trial court never considered other types
of legally secure placements," such as maintaining the children in temporary custody or
returning the children to Mother's custody with agency supervision to allow FCCS to
Nos. 20AP-488, 20AP-490, and 20AP-517 29
monitor how the family "functions and to see if the parents can actually get the children to
school." (Mother's Brief at 46, 47.)
{¶ 72} First, contrary to appellants' position, the trial court did expressly consider
alternative dispositions: the trial court in its decision framed the issue before it as "to wit:
Should the Court grant the Agency permanent custody or an alternative disposition
allowed by R.C. 2151.353? " (Emphasis added.) (Oct. 13. 2020 Decision at 4.)
{¶ 73} Second, Father's argument that the trial court failed to make promised,
specific findings is both against the record and unsupported by law. Father appears to
argue reversible error occurred because the trial court went back on what Father frames as
a promise to "make a finding of fact concerning the available dispositional alternatives
available * * * and explain why he had not chosen" an alternative disposition. (Father's
Brief at 20.) Our review of the record cited by Father shows the trial court did not make
that promise. Instead, the trial court promised to "consider" two alternative dispositions
offered by the children (temporary custody to FCCS or custody to Mother with supervision)
and to render a legal conclusion in its decision "[i]f the Court feels legally constrained in
doing a TCC to the Agency" and/or "[i]f the Court feels that it does not have the
jurisdictional or legal authority to do a TCC to the Agency on this new filing." (Aug 27, 2020
Tr. at 279, 282.) There is no indication the trial court felt legally (or jurisdictionally)
constrained from ordering a TCC; rather, the trial court found a permanent court
commitment was warranted in this case.
{¶ 74} Moreover, Father does not cite any legal authority requiring the trial court to
make findings or "explain why" alternative dispositions available under R.C. 2151.353(A)
were rejected. (Father's Brief at 20.) " 'It is the duty of the appellant, not the appellate
court, to construct the legal arguments necessary to support the appellant's assignments of
error.' " Cook v. Ohio Dept. of Job & Family Servs., 10th Dist. No. 14AP-852, 2015-Ohio-
4966, ¶ 40, quoting Bond v. Canal Winchester, 10th Dist. No. 07AP-556, 2008-Ohio-945,
¶ 16, citing Whitehall v. Ruckman, 10th Dist. No. 07AP-445, 2007-Ohio-6780, ¶ 2. See also
Young v. Locke, 10th Dist. No. 13AP-608, 2014-Ohio-2500, ¶ 16 ("App.R. 16(A)(7) requires
that an appellate brief contain an argument in support of each assignment of error
presented for review with citations to the authorities, statutes, and parts of the record on
Nos. 20AP-488, 20AP-490, and 20AP-517 30
which appellant relies."). Therefore, Father has not demonstrated the trial court erred in
this respect.
{¶ 75} Lastly, R.C. 2151.353 provides that when a child is adjudicated dependent,
the court may make one of several orders. R.C. 2151.353(A). "R.C. 2151.353 is discretionary
in that it gives the trial court several options when dealing with children adjudicated as
abused, neglected or dependent." In re I.M., 8th Dist. No. 82669, 2003-Ohio-7069, ¶ 46.
"[C]hildren do not first have to be put into a particular environment before a court can
determine that that environment is unhealthy or unsafe." (Emphasis sic; citations
omitted.) In re H.H., 2019-Ohio-4953, at ¶ 62. See also In re Lilley, 2004-Ohio-6156, at
¶ 33-35, quoting In re Bishop, 36 Ohio App.3d 123, 126 (5th Dist.1987) (internal quotation
omitted) (" '[A] child should not have to endure the inevitable to its great detriment and
harm in order to give the * * * [parent] an opportunity to prove her suitability. To anticipate
the future, however, is at most, a difficult basis for a judicial determination. The child's
present condition and environment is the subject for decision * * *. The law does not
require the court to experiment with the child's welfare to see if he will suffer great
detriment or harm.' ").
{¶ 76} In this case, the trial court exercised its discretion in finding it is in the
children's best interest to award permanent custody to FCCS for purposes of adoption in
accordance with R.C. 2151.353(A)(4). As provided in the second and third issues, above,
that determination is supported by the manifest weight of the evidence, and appellants have
not demonstrated the trial court erred in failing to order an alternative disposition in this
case. See In re I.M. at ¶ 38-47 (rejecting mother's argument that the trial court erred in not
ordering an alternative disposition to permanent custody); Miller v. Johnson & Angelo,
10th Dist. No. 01AP-1210, 2002-Ohio-3681, ¶ 2 ("The burden of affirmatively
demonstrating error on appeal rests with the [appellant].").
{¶ 77} Accordingly, we overrule Father's fourth assignment of error and the
children's third assignment of error. Mother's second assignment of error is overruled to
the extent it incorporates this issue. (See Mother's Brief at 46.)
V. CONCLUSION
{¶ 78} Having addressed and overruled Mother's two assignments of error, Father's
four assignments of error, and the children's three assignments of error, we affirm the
Nos. 20AP-488, 20AP-490, and 20AP-517 31
judgment of the Franklin County Court of Common Pleas, Division of Domestic Relations,
Juvenile Branch.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.
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