In re J.M.

[Cite as In re J.M., 2021-Ohio-4146.]
IN THE COURT OF APPEALS
FORTH APPELLATE DISTRICT
HIGHLAND COUNTY
: CASE NO. 21CA13
IN THE MATTER OF: 21CA14
: 21CA15
J.M., S.M., D.M., 21CA16
AND B.M., :
Adjudicated Dependent : DECISION & JUDGMENT ENTRY
Children.
:
________________________________________________________________
APPEARANCES:
K. Danielle Whitt, Hillsboro, Ohio, for Appellant.1
Anneka P. Collins, Highland County Prosecuting Attorney, and
James Roeder, Assistant Highland County Prosecuting Attorney,
Hillsboro, Ohio, for Appellee.
________________________________________________________________
CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:11-16-21
ABELE, J.
{¶1} This is an appeal from a Highland County Common Pleas
Court, Juvenile Division, judgment that granted Highland County
Job and Family Services Agency, Children Services Division,
appellee herein, permanent custody of four minor children: (1)
thirteen-year-old J.M.; (2) eleven-year-old S.M.; (3) eight-
year-old D.M.; and (4) six-year-old B.M.
1 Different counsel represented appellant during the trial court
proceedings.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 2
{¶2} Bianca M., the children’s biological mother and
appellant herein, raises the following assignments of error for
review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT’S AWARD OF PERMANENT
CUSTODY TO THE AGENCY IS WAS [SIC] AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS
CONSTITUTES REVERSABLE [SIC] ERROR.”
SECOND ASSIGNMENT OF ERROR:
“THE AGENCY DID NOT USE REASONABLE EFFORTS
TO PREVENT REMOVAL OR TO REUNITE THE
CHILDREN TO MOTHER-APPELLANT.”
{¶3} In August 2019, J.M. disclosed to school friends that
her father had sexually abused her. An agency caseworker
visited the school to speak with J.M. and she stated that her
“father was doing inappropriate things to her and that
[appellant] was aware of the allegations.” J.M. informed the
caseworker that J.M. “drew pictures of her and her father and
that [appellant] hid them.”
{¶4} When a caseworker spoke with appellant, she admitted
to “knowing in her gut that something happened.” Appellant did
not, however, ask the father to leave the home or report her
suspicions to anyone. Appellant advised the caseworker that
appellant “didn’t think she could raise the kids on her own and
chose to ignore the allegations.”
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 3
{¶5} On August 22, 2019, appellee sought, and received, an
emergency temporary custody order. On that same date, appellee
filed a complaint that alleged the children are abused,
neglected, and dependent and requested temporary custody of the
children.
{¶6} On October 18, 2019, appellant and the father admitted
to the allegations contained in the complaint and waived their
right to an adjudicatory hearing. The trial court adjudicated
the children dependent, dismissed the abuse and neglect
allegations, and based upon the parties’ agreement, the court
placed the children in appellee’s temporary custody for one
year. The court also found that appellee used reasonable
efforts to prevent the children’s removal from the home.
{¶7} On February 4, 2021, appellee filed a motion for
permanent custody. Appellee asserted that the children have
been in its temporary custody for at least 12 of the past 22
months and that placing the children in its permanent custody is
in the children’s best interests.
{¶8} On April 9, 2021, appellee filed a motion that asked
the trial court to suspend appellant’s visits with the children.
Appellee alleged that the three youngest children’s foster
parents “experienc[ed] an increase with emotional/behavioral
issues with the children in the past month.” The motion stated
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 4
that “SM & BM are struggling the most and fear for their safety
since their mother now is aware of their disclosure of sex
abuse.” Appellee claimed that D.M. “has had an increase in
bowel accidents, lying, [and] out of control thoughts.”
Appellee further indicated that J.M. currently is “in respite
due to her ongoing behavioral issues.” Appellee also asserted
that the children’s guardian ad litem recommended that visits be
suspended.
{¶9} To support its motion, appellee attached a letter from
the three younger children’s therapist that stated that visits
with appellant are not “health[y] or productive” for the
children. The therapist’s letter also outlined, in more detail,
the children’s worsening behavioral issues, along with the
children’s concerns raised regarding their visits with
appellant. Subsequently, the court granted the motion to
suspend visits.
{¶10} On June 4, 2021, the trial court held a hearing to
consider appellee’s permanent custody motion. At the hearing,
the parties presented evidence. Family Advocacy Center
visitation monitor Delores Colville testified that appellant
attended most of her scheduled visits with the children,
interacted appropriately with the children and noted that the
children seemed bonded to appellant.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 5
{¶11} Caseworker Rebecca Souther, the family’s caseworker
since February 2020, stated that the children’s father is in
prison with an expected release date in 2039. Souther related
that the agency developed a case plan for the family with a goal
of reunifying the children with appellant. This plan required
appellant to complete a psychological evaluation, to continue
mental health counseling, to obtain suitable housing, and to
maintain employment. Souther explained that appellant continued
to receive mental health counseling and had remained employed
throughout the pendency of the case. Appellant, however, had
recently moved to Mansfield “to get a fresh start.”
{¶12} Souther further related that the case plan recommended
that all four children receive psychological evaluations and
engage in counseling, and the children remain in counseling.
Souther reported that, after the children had been removed from
appellant’s home, the children had been placed with relatives.
Approximately four weeks later, however, J.M. entered a
residential facility and remained until September 2020 when the
agency placed J.M. in a therapeutic foster home. In January
2021, J.M. was removed from the home and placed in respite.
Between January 2021 and April 2021, J.M. was placed in two
foster homes. In April 2021, the agency placed J.M. in L.N.’s
home, and J.M. has remained in L.N.’s home since that time.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 6
{¶13} Souther also explained that the three younger children
remained in their relative placements until February 2020, when
the agency placed S.M. and B.M. with a foster family. The
children have since remained in the home.
{¶14} After D.M.’s removal from the relative’s home,
appellee placed him in a therapeutic foster home. In July 2020,
appellee placed D.M. with the same foster family as S.M. and
B.M. Shortly thereafter, D.M. was removed and placed with
another foster family. D.M. has remained with this foster
family since that time.
{¶15} Souther testified that the agency eventually
determined that reunifying the children with appellant is not
possible:
Throughout the life of this case, the children
have struggled with their behaviors, trained foster
parents have struggled to manage those behaviors. And
at the beginning of the case, [appellant] did state
that she hadn’t think [sic] that she was able to
manage them. She has not said that to me since then,
but I have a concern for her ability to be able to
manage these behaviors with these four children.
{¶16} C.C., a foster parent, stated that S.M. and B.M. have
lived in her home since February 2020. C.C. explained that,
when S.M. first entered her home, S.M. was domineering and “had
a lot of issue with behavior and attitude and not wanting to
listen or comply with rules.” C.C. reported that, at one point,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 7
S.M. had taken a cell phone from school and “tried to send very
explicit photos to a young boy at school of her private areas.”
Additionally, S.M. had several failing grades and displayed
aggressive behaviors.
{¶17} C.C. testified that B.M. “was very aggressive” when
the child first entered her home. She explained that B.M.
“would kick, scream, pull [the foster mother’s] hair, yell at
[the foster mother], * * * and throw herself to the ground.”
C.C. further indicated that B.M. had behavioral issues at school
and had “to transfer her classroom multiple times until B.M. was
placed with a teacher she felt “comfortable with.”
{¶18} C.C. stated that neither child slept through the
night, and B.M. “had terrible, terrible nightmares.” C.C. also
testified that both children displayed sexualized behavior and
see a trauma-based therapist. Since the children stopped
visiting appellant, however, their behaviors have improved.
Once visits stopped, S.M. improved her grades and finished the
school year with As and Bs. C.C. further explained that, since
visits stopped, B.M. has not had nightmares. C.C. stated that
she “would love to be able to adopt” B.M. and S.M.
{¶19} C.C. further related that D.M. lived in her home for
17 days and spent four of those days in the hospital. She
explained that D.M. broke a bed and tried to tip over a dresser.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 8
Additionally, D.M. “tried to sexually touch [B.M.] multiple
times.” At another point, D.M. ran away and she had to call law
enforcement to help to locate him.
{¶20} D.M.’s current foster parent, Cl.C. testified that
D.M. moved into her home in July 2020 following a hospital stay.
Cl.C. stated that when D.M. arrived, he was “bubbly” and
“started exploring” the house. Cl.C. related that the next day,
D.M. started to call her and her husband “mom and dad.” For the
first six weeks, D.M. did not display aggressive behavior, but
after six weeks she noticed “a lot of aggression.” He hit,
kicked, bit, pinched, and threw things. He also tried to run
away. Cl.C. stated that she eventually placed a camera in
D.M.’s room because he tried to break out the window and run
away.
{¶21} L.N., J.M.’s foster parent, testified that J.M. has
been in her home since April 17, 2021. L.N. stated that J.M.’s
behavior with L.N.’s husband is “borderline inappropriate,”
because J.M. tries “to tickle him often,” “tries to cuddle with
him on the couch,” and acts “a little bit flirtatious.”
{¶22} Appellant testified upon cross-examination and
indicated that she lives in Mansfield and works at Morrow Manor.
She explained she moved to Mansfield because she “wanted a fresh
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 9
start.” Appellant did acknowledge that the children made some
allegations against her, but she denied they are true.
{¶23} Appellant stated that she attends counseling every two
weeks to help treat PTSD, anxiety, and depression, and that she
takes four prescribed medicines to treat her conditions.
Appellant acknowledged that she admitted the children are
dependent, and that she stated that she did not believe that she
could raise the four children on her own, but she denied that
she admitted that she chose to ignore the sexual abuse
allegations.
{¶24} Appellant presented several witnesses to testify on
her behalf. Amanda Meeker, appellant’s best friend, stated that
the children did not have behavioral issues before appellee
removed them from appellant’s custody. Meeker further indicated
that she did not have any concerns about appellant’s parenting
skills.
{¶25} Deborah Britt, the children’s great-aunt, testified
that, when the agency first removed the children from
appellant’s custody, the agency placed J.M. and S.M. in her home
and placed D.M. and B.M. in Britt’s daughter’s home. Britt
explained that the agency later determined that the children
needed counseling and, due to her work schedule it would have
been difficult to ensure that the children could attend all of
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 10
their counseling sessions. Thus, the agency placed the children
in foster homes. Britt stated that, before the agency removed
the children from appellant’s care, the children were “well
behaved” and “polite.” Britt also has no concerns about
appellant’s parenting abilities.
{¶26} Appellant also presented testimony from her father and
sister, who likewise stated that they have no concerns about
appellant’s parenting abilities.
{¶27} On June 7, 2021, the trial court awarded appellee
permanent custody of the four children. The court first
determined that the children have been in appellee’s custody for
12 or more months of a consecutive 22-month period. The court
next considered the children’s best interests and noted that
although appellant attended most of the visits with the children
and the visits “went well,” the court expressed concern with
appellant’s admission that she believed “in her gut something
had happened,” yet did nothing. The court thus found that
appellant “violated her most basic and fundamental role as a
parent by failing to protect her children and most specifically
J.M. from being raped by [the father].” The court also noted
that appellant remained married to the father.
{¶28} The trial court also found the foster parents’
testimony “both compelling and heartbreaking.” The court
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 11
determined that “all four children observed a way of life with
their parents that was destructive and likely caused permanent
damage to each of them,” that the children have “numerous
behavioral issues,” and that they “are doing as well in their
respective placements as can be expected.”
{¶29} The trial court concluded that the parents’ “actions
as well as inactions” show that the children cannot achieve a
legally secure permanent placement without granting appellee
permanent custody. The court additionally observed that the
children’s guardian ad litem recommended that the court place
the children in appellee’s permanent custody.
{¶30} Consequently, the trial court determined that the
children’s placement in appellee’s permanent custody is in their
best interests and granted appellee permanent custody of the
four children. This appeal followed.
I
{¶31} In her first assignment of error, appellant asserts
that the trial court’s decision to grant appellee permanent
custody is against the manifest weight of the evidence.
{¶32} In particular, appellant contends that the evidence
shows that appellee should have attempted to reunify the family.
Appellant claims that she (1) complied with her case plan and
continued to engage in recommended counseling, (2) consistently
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 12
visited the children, (3) remained employed throughout the
pendency of the case, and (4) obtained a suitable residence.
Appellant further claims that the concerns that led appellee to
the children’s removal (father’s sexual abuse and the condition
of the home) have been eliminated. Appellant thus contends
that, because appellee did not present any evidence to show that
she “would be harmful to the children or that the children would
come to harm if returned to the care, custody and control of”
appellant, the court should have denied appellee’s permanent
custody motion and continued work to reunify appellant with the
children.
A
{¶33} Generally, a reviewing court will not disturb a trial
court’s permanent custody decision unless the decision is
against the manifest weight of the evidence. E.g., In re B.E.,
4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S.,
4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.
“Weight of the evidence concerns ‘the inclination
of the greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than
the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.’”
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 13
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972
N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,
387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594
(6th Ed.1990).
{¶34} When an appellate court reviews whether a trial
court’s permanent custody decision is against the manifest
weight of the evidence, the court “‘“weighs the evidence and all
reasonable inferences, considers the credibility of witnesses
and determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered.”’” Eastley at ¶ 20, quoting
Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th
Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d
541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist.
Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24. We further observe,
however, that issues relating to the credibility of witnesses
and the weight to be given the evidence are primarily for the
trier of fact. As the court explained in Seasons Coal Co. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The underlying rationale of giving deference to
the findings of the trial court rests with the
knowledge that the trial judge is best able to view
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 14
the witnesses and observe their demeanor, gestures and
voice inflections, and use these observations in
weighing the credibility of the proffered testimony.
Moreover, deferring to the trial court on matters of credibility
is “crucial in a child custody case, where there may be much
evident in the parties’ demeanor and attitude that does not
translate to the record well (Emphasis sic).” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
Accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶
7.
{¶35} The question that an appellate court must resolve when
reviewing a permanent custody decision under the manifest weight
of the evidence standard is “whether the juvenile court’s
findings * * * were supported by clear and convincing evidence.”
In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809,
¶ 43. “Clear and convincing evidence” is:
the 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, 103-04, 495 N.E.2d 23(1986). In determining whether a trial court based its decision
upon clear and convincing evidence, “a reviewing court will
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 15
examine the record to determine whether the trier of facts had
sufficient evidence before it to satisfy the requisite degree of
proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d
613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120
N.E.2d 118 (1954) (“Once the clear and convincing standard has
been met to the satisfaction of the [trial] court, the reviewing
court must examine the record and determine if the trier of fact
had sufficient evidence before it to satisfy this burden of
proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495
N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,
165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by
clear and convincing evidence in a particular case is a
determination for the [trial] court and will not be disturbed on
appeal unless such determination is against the manifest weight
of the evidence”).
{¶36} Thus, if a children services agency presented
competent and credible evidence upon which the trier of fact
reasonably could have formed a firm belief that permanent
custody is warranted, the court’s decision is not against the
manifest weight of the evidence. In re R.M., 2013-Ohio-3588,
997 N.E.2d 169, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene
Nos. 2012CA32 and Greene Nos. 2012CA33, 2012-Ohio-6049, ¶ 17,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 16
quoting In re A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-
187, ¶ 9 (“A reviewing court will not overturn a court’s grant
of permanent custody to the state as being contrary to the
manifest weight of the evidence ‘if the record contains
competent, credible evidence by which the court could have
formed a firm belief or conviction that the essential statutory
elements * * * have been established.’”).
{¶37} Once a reviewing court finishes its examination, the
judgment may be reversed only if it appears that the fact-
finder, when resolving the conflicts in evidence, “‘clearly lost
its way and created such a manifest miscarriage of justice that
the [judgment] must be reversed and a new trial ordered.’”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State
v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). A reviewing court should find a trial court’s
permanent custody decision against the manifest weight of the
evidence only in the “‘exceptional case in which the evidence
weighs heavily against the [decision].’” Id., quoting Martin, 20
Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87
Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
B
{¶38} We recognize that “parents’ interest in the care,
custody, and control of their children ‘is perhaps the oldest of
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 17
the fundamental liberty interests recognized by th[e United
States Supreme] Court.’” In re B.C., 141 Ohio St.3d 55, 2014-
Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530
U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the
right to raise one’s “child is an ‘essential’ and ‘basic’ civil
right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental
right to the care and custody of their children”). Thus,
“parents who are ‘suitable’ have a ‘paramount’ right to the
custody of their children.” B.C. at ¶ 19, quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing
Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio
St.3d at 157, 556 N.E.2d 1169.
{¶39} A parent’s rights, however, are not absolute. In re
D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.
Rather, “‘it 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.’” In
re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),
quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 18
the State may terminate parental rights when a child’s best
interest demands such termination. D.A. at ¶ 11.
{¶40} Before a court may award a children services agency
permanent custody of a child, R.C. 2151.414(A)(1) requires the
court to hold a hearing. The primary purpose of the hearing is
to allow the court to determine whether the child’s best
interests would be served by permanently terminating the
parental relationship and by awarding permanent custody to the
agency. Id. Additionally, when considering whether to grant a
children services agency permanent custody, a trial court should
consider the underlying purposes of R.C. Chapter 2151: “to care
for and protect children, ‘whenever possible, in a family
environment, separating the child from the child’s parents only
when necessary for the child’s welfare or in the interests of
public safety.’” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
¶ 29, 862 N.E.2d 816, quoting R.C. 2151.01(A).
C
{¶41} A children services agency may obtain permanent
custody of a child by (1) requesting it in the abuse, neglect or
dependency complaint under R.C. 2151.353, or (2) filing a motion
under R.C. 2151.413 after obtaining temporary custody. In this
case, appellee sought permanent custody by filing a motion under
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 19
R.C. 2151.413. When an agency files a permanent custody motion
under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A).
{¶42} R.C. 2151.414(B)(1) permits a trial court to grant
permanent custody of a child to a children services agency if
the court determines, by clear and convincing evidence, that the
child’s best interest would be served by the award of permanent
custody and that one of the following conditions applies:
(a) The child is not abandoned or orphaned 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 ending on or after
March 18, 1999, and the child cannot be placed with
either of the child’s parents within a reasonable time
or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no
relatives of the child who are able to take permanent
custody.
(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 ending
on or after March 18, 1999.
(e) The child or another child in the custody of
the parent or parents from whose custody the child has
been removed has been adjudicated an abused,
neglected, or dependent child on three separate
occasions by any court in this state or another state.
{¶43} Thus, before a trial court may award a children
services agency permanent custody, it must find (1) that one of
the circumstances described in R.C. 2151.414(B)(1) applies, and
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 20
(2) that awarding the children services agency permanent custody
would further the child’s best interest.
{¶44} In the case at bar, appellant does not dispute the
trial court’s finding that the children have been in the
agency’s temporary custody for 12 or more months of a
consecutive 22-month period. Therefore, we do not address the
court’s R.C. 2151.414(B)(1)(d) finding. Appellant does,
however, contest the trial court’s finding that placing the
children in appellee’s permanent custody is in their best
interests.
{¶45} R.C. 2151.414(D) directs a trial court to consider
“all relevant factors,” as well as specific factors, to
determine whether a child's best interest will be served by
granting a children services agency permanent custody. The
listed factors include: (1) the child’s interaction and
interrelationship with the child’s parents, siblings, relatives,
foster parents and out-of-home providers, and any other person
who may significantly affect the child; (2) the child’s wishes,
as expressed directly by the child or through the child’s
guardian ad litem, with due regard for the child’s maturity; (3)
the child’s custodial history; (4) 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
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 21
to the agency; and (5) whether any factors listed under R.C.
2151.414(E)(7) to (11) apply.
{¶46} Courts that are determining whether a grant of
permanent custody to a children services agency will promote a
child’s best interest must consider “all relevant [best
interest] factors,” as well as the “five enumerated statutory
factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d
498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G.,
9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-
3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and
Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of
the best interest factors are entitled to “greater weight or
heightened significance.” C.F. at ¶ 57. Instead, the trial
court considers the totality of the circumstances when making
its best interest determination. In re K.M.S., 3rd Dist. Marion
Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶
24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶
46. In general, “[a] child’s best interest is served by placing
the child in a permanent situation that fosters growth,
stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos.
15CA18 and Lawrence Nos. 15CA19, 2016-Ohio-916, ¶ 66, citing In
re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055(1991).
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 22
{¶47} In the case sub judice, after our review of the trial
court proceeding, we do not believe that the trial court’s best-
interest determination is against the manifest weight of the
evidence.
{¶48} We first note that, although appellant’s first
assignment of error recites the best-interest factors, she does
not explain how any of those factors show that granting
permanent custody of the children is not in their best
interests. Instead, the best interest argument contained
beneath appellant’s first assignment of error focuses solely
upon her conduct, her case plan compliance, and her current
situation. However, the argument contained beneath appellant’s
second assignment of error does contain a short argument
regarding the best-interest factors. Appellant asserts that she
and the children share “a clear bond” and that appellant
consistently visited the children. Although appellant did not
raise her best-interest argument within the corresponding
assignment of error, we nonetheless will consider whether the
trial court’s best interest determination is against the
manifest weight of the evidence.
Children’s Interactions and Interrelationships
{¶49} The evidence adduced at the hearing reveals that the
four children enjoy visiting with one another, generally enjoyed
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 23
visiting appellant, and appeared to be bonded with appellant.
We hasten to add, however, that the mere existence of a bond is
not the sole deciding factor when a court evaluates a child’s
best interest. See In re L.D., 2017-Ohio-1037, 86 N.E.3d 1012,
¶ 38 (8th Dist.) (mother’s bond with children not weighed more
heavily than other statutory best interest factors).
{¶50} Furthermore, in April 2021, the trial court terminated
appellant’s visits with the children due to concerns that the
visits were no longer healthy for the children and seemed to
cause the children’s behavioral issues to worsen. Thus, the
evidence indicates that the children do not share a positive,
healthy relationship with appellant. Instead, the evidence
illustrates that appellant’s conduct, and her failure to protect
her children, has caused the children to suffer serious
emotional trauma.
{¶51} Additionally, foster families are providing the
children with a healthy environment, along with the support that
the children need. S.M. and B.M.’s foster parents would like to
adopt the two children. Appellee, however, did not present any
clear evidence regarding D.M.’s and J.M.’s foster parents’
intentions. The evidence does show that all the foster parents
are making admirable and commendable efforts to help these
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 24
fragile children improve their behaviors and overall mental
health.
Children’s Wishes
{¶52} The court stated that the children’s wishes are
“outlined within the Guardian Ad Litem report” and noted that
the guardian ad litem recommended the court grant appellee
permanent custody of the children.
Custodial History
{¶53} Before their August 2019 removal from the home, the
children lived with appellant and their father. Since their
removal, the children have remained in appellee’s temporary
custody. When appellee filed its February 2021 permanent
custody motion, the children had been in appellee’s temporary
custody for more than 12 months.
Legally Secure Permanent Placement
{¶54} “Although the Ohio Revised Code does not define the
term, ‘legally secure permanent placement,’ this court and
others have generally interpreted the phrase to mean a safe,
stable, consistent environment where a child’s needs will be
met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793,
¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL
925423, *9 (Aug. 9, 2001) (“legally secure permanent placement”
means a “stable, safe, and nurturing environment”); see also In
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 25
re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-
Ohio-4682, ¶ 28 (legally secure permanent placement requires
more than stable home and income, but also requires environment
that will provide for child’s needs); In re J.H., 11th Dist.
Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (mother unable to
provide legally secure permanent placement when she lacked
physical and emotional stability and father unable to do so when
he lacked grasp of parenting concepts); In re J.W., 171 Ohio
App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.)
(Sadler, J., dissenting) (legally secure permanent placement
means “a placement that is stable and consistent”); Black’s Law
Dictionary 1354 (6th Ed. 1990) (defining “secure” to mean, in
part, “not exposed to danger; safe; so strong, stable or firm as
to insure safety”); id. at 1139 (defining “permanent” to mean,
in part, “[c]ontinuing or enduring in the same state, status,
place, or the like without fundamental or marked change, not
subject to fluctuation, or alteration, fixed or intended to be
fixed; lasting; abiding; stable; not temporary or transient”).
Thus, “[a] legally secure permanent placement is more than a
house with four walls. Rather, it generally encompasses a
stable environment where a child will live in safety with one or
more dependable adults who will provide for the child’s needs.”
M.B. at ¶ 56.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 26
{¶55} In the case sub judice, after our review we believe
that the evidence adduced at the hearing supports the trial
court’s finding that the children need a legally secure
permanent placement, and they cannot achieve this type of
placement without granting appellee permanent custody. As the
court found, appellant ignored the sexual abuse allegations.
This court previously recognized that “a parent’s doubts
regarding a child’s abuse allegations raise serious questions
about that parent’s protective capacities and commitment to
providing for the child’s emotional needs.” In re A.M., 2018-
Ohio-646, 105 N.E.3d 389, ¶ 82 (4th Dist.) (citations omitted);
see also In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895
N.E.2d 809, ¶ 47 (mother’s decision to remain living with
pedophile-husband supported R.C. 2151.414(E)(14) finding that
she is unwilling to prevent children from suffering physical,
emotional, or sexual abuse); In re A.J., 6th Dist. Lucas No. L-
13-1118, 2014-Ohio-421, ¶ 55 (mother’s “continued skepticism
about what occurred under her own roof displays a conscious
disregard to protect her children and for their well-being”); In
re J.H., 12th Dist. Preble No. CA2007-07-016, 2007-Ohio-7079, ¶¶
30–31 (evidence did not show father prioritized children’s
safety and unwilling to protect children from future abuse when
intended to stay married to wife, the abuser, and when failed to
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 27
acknowledge his wife abused the children); In re Moore, 7th
Dist. Belmont No. 04-BE-9, 2005-Ohio-136, ¶ 40 (upholding
permanent custody decision based, in part, upon testimony from
sexual abuse investigator that “if a parent does not believe
abuse allegation by a child, they would not be capable of
protecting that child from future abuse”); Matter of Ranker,
11th Dist. Portage Nos. 95–P–0093–0096, 1996 WL 761159, *10
(Dec. 6, 1996) (court may grant permanent custody when mother
unable to protect children from a foreseeable abusive
situation).
{¶56} In the case at bar, appellant did not notify anyone
about her suspicions that the father had sexually abused J.M.
Appellant did admit that she knew “in her gut that something
happened,” yet did nothing. Instead, appellant remained silent
because she did not believe that she could raise the children on
her own. Appellant thus failed in one of her essential duties
as a parent – to protect her children from abuse. Consequently,
appellant’s failure to report her suspicions raises serious
doubts about her protective capacity and her ability to provide
the children with a safe environment.
{¶57} Moreover, all of the children have serious behavioral
issues that require counseling. The stability and routines that
the foster homes have given the children allow the children to
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 28
begin to recover. Additionally, once visits with appellant
terminated, the foster families noticed significant improvement
in the children’s behaviors. Thus, the trial court could have
reasonably determined that placing the children in appellee’s
permanent custody would give the children the best chance of
overcoming the emotional trauma that they suffered, and that
returning them to appellant – the caregiver who failed to
protect them – would cause them to regress. We cannot fault the
trial court for choosing not to experiment with the children’s
welfare, especially considering their delicate states. As this
court often notes:
“* * * [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 not the expected or anticipated
behavior of unsuitability or unfitness of the * * *
[parent]. * * * The law does not require the court to
experiment with the child’s welfare to see if he will
suffer great detriment or harm.”
In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 48,
quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838(5th Dist.1987).
{¶58} Moreover, even if appellant complied with every part
of the case plan, as we have observed in the past, a parent’s
case plan compliance may be a relevant, but not necessarily
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 29
conclusive, factor when a court considers a permanent custody
motion. In re B.P., 4th Dist. Athens No. 20CA13, 2021-Ohio-
3148, ¶ 57; In re T.J., 4th Dist. Highland No. 2016-Ohio-163, ¶
36, citing In re R.L., 9th Dist. Summit Nos. 27214 and 27233,
2014-Ohio-3117, ¶ 34 (“although case plan compliance may be
relevant to a trial court’s best interest determination, it is
not dispositive of it”); In re S.C., 8th Dist. Cuyahoga No.
102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a case plan is
not, in and of itself, dispositive of the issue of
reunification”); accord In re K.M., 4th Dist. Ross No. 19CA3677,
2019-Ohio-4252, ¶ 70, citing In re W.C.J., 4th Dist. Jackson No.
14CA3, 2014-Ohio-5841, ¶ 46 (“[s]ubstantial compliance with a
case plan is not necessarily dispositive on the issue of
reunification and does not preclude a grant of permanent custody
to a children’s services agency”); In re N.L., 9th Dist. Summit
No. 27784, 2015-Ohio-4165, ¶ 35 (“substantial compliance with a
case plan, in and of itself, does not establish that a grant of
permanent custody to an agency is erroneous”). “Indeed, because
the trial court’s primary focus in a permanent custody
proceeding is the child’s best interest, ‘it is entirely
possible that a parent could complete all of his/her case plan
goals and the trial court still appropriately terminate his/her
parental rights.’” W.C.J. at ¶ 46, quoting In re Gomer, 3d
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 30
Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-Ohio-
1723, ¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14,
2008-Ohio-5227, ¶ 24 (“when considering a R.C. 2151.414(D)(1)(d)
permanent custody motion, the focus is upon the child’s best
interests, not upon the parent’s compliance with the case
plan”). Thus, a parent’s case plan compliance will not preclude
a trial court from awarding permanent custody to a children
services agency when doing so is in the child’s best interest.
Id.{¶59} In the case sub judice, as we noted above, we believe
that the record contains ample clear and convincing evidence
that placing the children in appellee’s permanent custody is in
their best interests. Although we do not discount appellant’s
compliance with the case plan, her case plan compliance does not
override the children’s best interests.
{¶60} Accordingly, based upon the foregoing reasons, we
overrule appellant’s first assignment of error.
II
{¶61} In her second assignment of error, appellant asserts
that the trial court erred by granting appellee permanent
custody of the children due to appellee’s alleged lack of
reasonable efforts to reunify the family. Appellant contends
that appellee should have instead filed for a six-month
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 31
temporary custody extension, rather than a permanent custody
request.
{¶62} We note, however, that the argument that appears
beneath appellant’s second assignment of error does not assert
that appellee failed to use reasonable efforts. Instead, within
her second assignment of error appellant contends that the trial
court’s best-interest determination is against the manifest
weight of the evidence. Because appellant does not raise any
specific argument regarding appellee’s alleged failure to use
reasonable efforts, we will not construct this argument for her.
See generally State v. Dailey, 4th Dist. Adams No. 18CA1059,
2018-Ohio-4315, ¶ 43-44, quoting State v. Palmer, 9th Dist.
Summit No. 28303, 2017-Ohio-2639, ¶ 33 (appellate court does not
have a duty to construct argument on an appellant’s behalf and
stating that this court will not address “‘undeveloped
arguments’”). We further note that R.C. 2151.419(A)(1) does
require a trial court to determine whether a children services
agency “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.” However, this statute applies
only at “adjudicatory, emergency, detention, and temporary-
disposition hearings, and dispositional hearings for abused,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 32
neglected, or dependent children * * *.” C.F., supra, at ¶ 41;
accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19,
2016-Ohio-916, ¶ 72. Thus, “‘[b]y its plain terms, the statute
does not apply to motions for permanent custody brought pursuant
to R.C. 2151.413, or to hearings held on such motions pursuant
to R.C. 2151.414.’” C.F. at ¶ 41, quoting In re A.C., 12th
Dist. Clermont No. CA2004-05-041, 2004-Ohio-5531, ¶ 30.
Nonetheless, “[t]his does not mean that the agency is relieved
of the duty to make reasonable efforts” before seeking permanent
custody. Id. at ¶ 42. Instead, at prior “stages of the child-
custody proceeding, the agency may be required under other
statutes to prove that it has made reasonable efforts toward
family reunification.” Id. Additionally, “[if] the agency has
not established that reasonable efforts have been made prior to
the hearing on a motion for permanent custody, then it must
demonstrate such efforts at that time.” Id. at ¶ 43.
{¶63} In the case sub judice, appellant’s appeal does not
originate from one of the types of hearings specifically listed
in R.C. 2151.419(A): “adjudicatory, emergency, detention, and
temporary-disposition hearings, and dispositional hearings for
abused, neglected, or dependent children.” Appellee, therefore,
did not have the burden to prove at the permanent custody
hearing that it used reasonable efforts to reunify the family,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 33
unless it had not previously done so. Here, our review of the
record reflects that the trial court made reasonable efforts
findings before the agency filed its permanent custody motion.
Thus, the court did not need to again find that the agency used
reasonable efforts before it could grant the agency permanent
custody of the children. E.g., In re M.H.–L.T., 4th Dist.
Washington No. 17CA12, 2017-Ohio-7825, ¶ 64; In re S.S., 4th
Dist. Jackson Nos. 16CA7 and 16CA8, 2017-Ohio-2938, ¶ 168.
{¶64} Accordingly, based upon the foregoing reasons, we
overrule appellant’s second assignment of error and affirm the
trial court’s judgment.
JUDGMENT AFFIRMED.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16
34
JUDGMENT ENTRY
It is ordered that the judgment be affirmed. Appellee
shall recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds for this
appeal.
It is ordered that a special mandate issue out of this
Court directing the Highland County Common Pleas Court, Juvenile
Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that
mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. & Wilkin, J.: Concur in Judgment & Opinion
For the Court
BY:__________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
commences from the date of filing with the clerk.