In re E.H.

[Cite as In re E.H., 2022-Ohio-3124.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
IN THE MATTER OF: Hon. Earle E. Wise, Jr., P.J.
Hon. William B. Hoffman, J.
E.H. Hon. John W. Wise, J.
Case No. 2022CA00017
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common PLeas,
Juvenile Division, Case No. F2019-0134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 7, 2022
APPEARANCES:
For Mother J.H. For Appellee
JERMAINE COLQUITT NO APPEARANCE
33 West Main Street, Suite 109
Newark, Ohio 43055
Guardian ad Litem For Appellant Grandmother R.H.
CEDRIC P. COLLINS ALLISON MACLEOD-OWEN
P. O. Box 564 110 East Elm Street, Suite B
Pickerington, Ohio 43147 Granville, Ohio 43023
For E.H.
J. MICHAEL NICKS
96 West William Street, Suite 100
Delaware, Ohio 43015
Licking County, Case No. 2022CA00017 2
Wise, John, J.
{¶1} Appellant R.H. appeals the decision of the Licking County Court of Common
Pleas, Juvenile Division, which terminated Appellant’s parental rights and granted Licking
County Department of Job and Family Services’ (“Agency”) motion for permanent custody
of E.H. The following facts give rise to this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} E.H. was born on August 28, 2018. J.H. is the biological mother of E.H.; B.H
is the biological father of E.H. Appellant is the maternal grandmother of E.H.
{¶3} E.H. was found to be a neglected and dependent child.
{¶4} On March 19, 2019, E.H. was removed from the care of J.H. and B.H.
{¶5} On February 19, 2020, the Agency filed for permanent custody of E.H.
{¶6} On September 28, 2020, the trial court held a hearing on the State’s Motion
for Permanent Custody before the Magistrate.
{¶7} At the hearing, Jennifer Newton testified that she has been the foster mother
of E.H since April 4, 2019. When E.H. first came to live with the Newtons, he was on
oxygen, underweight, and fragile. E.H. had bronchial pulmonary dysplasia from scar
tissue in his lungs from being on a ventilator when he was born twenty-eight weeks
premature. E.H.’s half-brother, D.H., lives with the Newtons. D.H. came to the Newton
house on June 19, 2020.
{¶8} E.H. is currently in weekly speech therapy and physical therapy twice a
month. E.H. also has medical appointments for eczema and early cerebral palsy. J.H.
was not approved or permitted to attend the appointments.
Licking County, Case No. 2022CA00017 3
{¶9} Next, Allison Keeley testified she was employed by Licking County Children
Services as a social worker until December of 2019. Ms. Keeley has been involved in
E.H.’s case since April of 2019. The Agency became involved in E.H.’s case due to
substance abuse by the parents, lack of financial stability, poor living conditions and
neglect.
{¶10} On April 18, 2019, a case plan for E.H.’s parents was filed. The issues
identified in the case plan were income, housing, substance abuse, couples counseling,
mental health and employment. At the time of filing, J.H. reported domestic violence
between her and E.H.’s father.
{¶11} E.H. was born twenty-eight weeks premature. His parents were not
following through on his medical appointments. Initially, the parents were living in Newark,
Ohio, but were evicted from their residence. E.H.’s parent’s relationship was on and off,
and they never attended couples counseling.
{¶12} After eviction, J.H. had no permanent address. J.H. reported to the Agency
that she was beginning work at a McDonald’s; however, the McDonald’s said she was not
working for them. J.H. claimed no other employment. J.H. also claimed she was engaging
in alcohol and drug abuse treatment at NYAP. However, NYAP confirmed she went
through the intake process, but never engaged in treatment. J.H. confirmed to the Agency
that she was still using cocaine and methamphetamine.
{¶13} During an in-home visit, Ms. Keeley noted that J.H. would not allow them
past the entryway of the home. J.H. said they were being evicted and everything was
packed up.
Licking County, Case No. 2022CA00017 4
{¶14} After B.H. was evicted from his residence in Newark, Ohio, he did not report
another permanent address. B.H. followed through on alcohol and drug treatment. B.H.
admitted to using cocaine and marijuana.
{¶15} The Agency looked to place E.H. with J.H.’s mother Appellant. The Agency
decided against placement with Appellant due to Appellant’s own history with the Agency
and reports of mold in Appellant’s home. When Appellant and Ms. Keeley spoke about
E.H. going to live with Appellant, Appellant said she can buy a new house so mold won’t
be an issue.
{¶16} Next, Phaedra Abdalla testified that she is a visitation coordinator with the
Agency. She supervises visits, intervenes as needed, and takes notes. J.H. had been
removed from the visitation schedule because she had three no-show visits in a row. Her
visitation was rescheduled for August 27, 2019.
{¶17} During the visits, J.H. actively participated by playing with E.H., bringing him
snacks, and changing diapers. She was generally pleasant and respectful.
{¶18} During Appellant’s portion of the visits, Ms. Abdalla stated Appellant was
overbearing. She was bossing people around and hindering J.H.’s visit with E.H.
{¶19} Next, J.H. testified she is currently living in Newark, Ohio with a friend of her
father. No formal lease or contract exists for housing. J.H. testified she completed her
initial drug and alcohol assessment, but when she returned to engage in treatment, her
counselor had left and they failed to assign her a new counselor.
{¶20} J.H. testified she was placed in temporary custody of Franklin County
Children’s Services at the age of thirteen or fourteen. She was briefly reunited with
Appellant at age sixteen, but was back in Franklin County Children’s Services custody
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until age eighteen. J.H. had run away from home and was hit with a belt by Appellant.
J.H. testified to possible use in the last three months of methamphetamine. J.H. testified
E.H.’s father has hit her on three occasions.
{¶21} J.H. currently lives with her boyfriend at a family friend’s house. There is no
formal contract in place. J.H. did not inform the Agency of her new residence, the identity
of her boyfriend, or that she is living with her boyfriend.
{¶22} J.H. also testified to her employment history. She stated she worked a
couple shifts at a pizzeria, worked at Club 2k, and would be paid for singing, dancing, and
rapping. She has not had any income in the last thirty days. J.H. has stayed with Appellant
recently. Appellant has provided some support to J.H.
{¶23} The hearing was continued to October 13, 2020.
{¶24} At this hearing, a motion was made to allow Appellant to attend visitations
with E.H. The trial court granted this motion.
{¶25} J.H. failed to appear at the hearing, and her counsel moved for a
continuance. The continuance was denied.
{¶26} Bridget Lorenz Lemberg testified she is the lab director and toxicologist at
Forensic Fluids Laboratories in Kalamazoo, Michigan.
{¶27} Forensic Fluids Laboratories performed drug tests on J.H. In May of 2019,
J.H. tested positive for amphetamine and methamphetamine. In August of 2019, J.H.
tested positive for amphetamine, methamphetamine, and marijuana. In September of
2019, J.H. did not test positive for any controlled substance. In December of 2019, J.H.
tested positive for marijuana. In January of 2020, J.H. testified positive for amphetamine,
methamphetamine and marijuana. In February of 2020, J.H. tested positive for
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amphetamine and methamphetamine. In March of 2020, J.H. tested positive for
amphetamine and methamphetamine. In June of 2020, J.H. tested positive for
methamphetamine and cocaine. In July of 2020, J.H. tested positive for amphetamine
and methamphetamine. In August of 2020, J.H. tested positive for amphetamine and
methamphetamine.
{¶28} Forensic Laboratories also conducted drug testing of B.H. In June of 2019,
he tested positive for amphetamine, methamphetamine, marijuana, and cocaine. In
August of 2019, he tested positive for amphetamine, methamphetamine, and marijuana.
In September of 2019, he did not test positive for any controlled substance. In November
of 2020, he tested positive for amphetamine and methamphetamine. In December of
2020, he tested positive for marijuana. In January of 2020, he tested positive for
marijuana. In February of 2020, he tested positive for marijuana. In March of 2020 he
tested positive for marijuana and cocaine. In June of 2020, he tested positive for
marijuana. In August of 2020, he tested positive for marijuana.
{¶29} Next, Palma Ashcraft testified she is a social worker with the Agency. E.H.
was born addicted to cocaine and marijuana. E.H. was removed from the care of J.H. and
B.H. over concerns of hospitalization from nonorganic failure to thrive and losing a
significant amount of weight. Neither J.H. nor B.H. were following through on
recommendations during hospital admissions. The Agency was also concerned over
home conditions, unemployment of J.H., parenting, substance abuse, and mental health.
{¶30} Ms. Ashcraft reviewed the case plan with J.H. and B.H. J.H. had to obtain
stable housing and employment, undergo substance abuse treatment, mental health
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treatment, couples counseling, and resolve traffic and legal issues. From June of 2019
until April of 2020, J.H. had no stable residence.
{¶31} Ms. Ashcraft visited J.H.’s current residence in Newark on September 29,
2020. Ms. Ashcraft described it as appropriate. However, the Agency has concerns over
J.H.’s boyfriend, Je.H. He has current felony charges against him for theft. J.H. does not
have a contract with the landlord. The Agency is concerned with J.H.’s housing at this
time.
{¶32} J.H. did not disclose employment until January of 2020, when she worked
at Hendoc’s pub in Columbus and picked up odd jobs on TaskRabbit until February of
2020. From June of 2020 until August of 2020, she reported working at a pizzeria and
Club 2k, but never produced verification. Next, she claimed she traveled out west with a
friend delivering cantaloupe and watermelon to Colorado, but did not disclose if or how
much she was paid. J.H.’s employment is still an issue for the Agency.
{¶33} Appellant claimed she attended substance abuse classes at BHP in Mount
Vernon, Ohio, but when Ms. Ashcraft called to verify, they said that they had never heard
of her. J.H. never sought treatment for substance abuse or mental health as required by
her case plan. J.H. took thirteen drug tests over the course of the case plan, and tested
positive for methamphetamines in a majority of them. J.H.’s substance abuse and mental
health is still an issue for the Agency.
{¶34} J.H. did complete parenting classes. However, her attendance at visitations
with E.H. were not consistent. If all three boys were in attendance, it was very chaotic,
and hard for her to handle all three children. Now that her visits are only with E.H., it is
easier for her. J.H.’s behavior during the visits is not an issue for the Agency.
Licking County, Case No. 2022CA00017 8
{¶35} During one visitation, Ms. Ashcraft gave B.H. a ride from drug testing to
visitation one day. Upon arrival Appellant took pictures, and then J.H. arrived to videotape
and yell at Ms. Ashcraft and B.H. J.H. was yelling obscenities until Appellant told her to
get in Appellant’s car and they pulled away.
{¶36} B.H.’s case plan included obtaining stable housing, obtaining stable
employment, completing drug and mental health treatment, taking parenting classes,
couples counseling, and resolve any legal or traffic issues.
{¶37} After B.H.’s eviction from his residence in Newark, he stayed with friends
for several months. Then he moved to Massachusetts to live with his dad. He then moved
back to Newark in August of 2020. He now lives with J.H.’s foster brother. The residence
is a three-bedroom duplex. His two sons live with him. He sleeps on the couch, and there
is not a room for E.H. B.H. has an agreement with J.H.’s brother, no lease or contract.
B.H.’s housing is still a concern for the Agency.
{¶38} B.H. claims employment with Amazon, but has not verified his employment.
The issue of B.H.’s employment is still a concern of the Agency.
{¶39} B.H. attended substance abuse treatment in Ohio. This stopped due to
COVID. At the beginning, B.H. was testing positive for methamphetamine, but by the end
of the case he mainly tested positive for marijuana. B.H. has indicated he does not
recognize marijuana as an illegal substance and has no plans to stop using it. Substance
abuse and mental health are still a concern for the Agency.
{¶40} The Agency has identified Appellant as a possible relative for placing E.H.
The Agency ruled out Appellant because of her past agency involvement and
conversations Ms. Ashcraft had with her. Appellant had told Ms. Ashcraft that E.H. spent
Licking County, Case No. 2022CA00017 9
substantial time with her. She cared for him frequently. This led Ms. Ashcraft to have
concerns that she didn’t identify the situation and remove E.H. from the situation. She
should have noticed his weight loss and that he was not receiving the care he needed.
Appellant has a history of physical abuse which led to Appellant’s removal from her home.
{¶41} Appellant’s initial home was also deemed unsuitable as there were black
mold issues.
{¶42} Appellant was present at the hospital during E.H.’s hospitalization more
than either parent. Appellant was a trusted source of care for E.H. when his siblings were
sick. Appellant obtained a new residence, but it was never inspected.
{¶43} No other family members have been identified as suitable for placement.
E.H. has been diagnosed with early cerebral palsy.
{¶44} E.H. is currently living with Jennifer and Jason Newton in a foster-to-adopt
placement. They are interested in adopting if permanent custody is granted to the Agency.
He is with his older sibling D.H. and has three foster siblings. All of his special needs are
being met by the Newtons.
{¶45} The Agency does not believe either parent has alleviated or will alleviate
the concerns giving rise to the dependency finding in the near future. E.H. cannot be
placed with either parent in the near future. It is in the Agency’s opinion that granting
permanent custody is in the best interest of E.H.
{¶46} Next, Cedric Collins testified that he is the Guardian ad Litem for E.H. He
has observed E.H. in his foster home and has observed that he is doing very well. Initially,
E.H. had many medical issues, was on oxygen, had significant weight loss, and was not
developing. Now he is growing, gaining weight, off oxygen, and walking.
Licking County, Case No. 2022CA00017 10
{¶47} Mr. Collins still has concerns regarding B.H.’s and J.H.’s ability to parent
E.H. Specifically, they are still using illegal substances, they are not financially stable,
they do not have stable housing, and all these are important for a child with special needs.
{¶48} Mr. Collins looked into placement with Appellant. He went to Appellant’s
home, observed most everything a child of E.H.’s age would need. However, the stairs to
the basement did not have a railing to prevent a child from falling, which is important for
a child with special needs. She was not fully unpacked and boxes still needed put away.
Appellant was receiving partial retirement, but also working to meet her own needs. Mr.
Collins was concerned about meeting the needs of E.H. Appellant needs a better support
system if she were to take custody of E.H.
{¶49} Mr. Collins is concerned that given Appellant bond with E.H., she should not
have given him back to the parents when so many issues existed without calling the
Agency. The Guardian ad Litem testified it would be in the child’s best interest to grant
the Agency permanent custody of E.H.
{¶50} The trial court then recessed until November 23, 2020.
{¶51} At the November 23, 2020 hearing, the trial court heard a motion on granting
legal custody to Appellant.
{¶52} Appellant testified she is E.H.’s maternal grandmother. She owns her own
home with four bedrooms and two bathrooms. E.H. will have his own bedroom. Appellant
is on unemployment due to COVID.
{¶53} Appellant has a conviction for disorderly conduct. She took her dog to a
bingo hall. She parked the car in the shade and put the windows down. She testified the
dog had water and food. She went into the bingo hall and came out after forty-five minutes
Licking County, Case No. 2022CA00017 11
to check on the dog. She got into an altercation with officers when they tried to get her to
leave the bingo hall to take care of the dog.
{¶54} Appellant testified J.H. had behavioral issues in her youth, but she does not
recall beating J.H. with a belt. She said that J.H. is still lying about Appellant’s abuse.
{¶55} The hospital discharged E.H. to Appellant after he was born, as two of his
siblings were sick. After returning E.H. to his parents three days later, E.H. was in the
hospital with a respiratory issue. Again, the hospital discharged E.H. to Appellant. J.H.
and the children stayed with Appellant for four days until J.H. wanted to go back to live
with B.H. Appellant did not agree with this and did not want to take the children back. J.H.
called the police and told them Appellant kidnapped her children. When the police arrived,
they wanted to know why Appellant did not want to give the children back. She said
because the parents were fighting.
{¶56} Three weeks after the incident, E.H. went back into the hospital. Appellant
stayed with E.H. at the hospital.
{¶57} With relation to the incident with Ms. Ashcraft at a visitation, Appellant said
she saw B.H. in Ms. Ashcraft’s car, and it did not seem right to her. Then J.H. finished her
visitation and got angry with Ms. Ashcraft and B.H.
{¶58} Appellant has had three visits with E.H. She believes E.H. is enjoying his
time with her. She does not believe removing E.H. from his foster home would traumatize
him.
{¶59} Appellant believes it is in the best interest of E.H. to be placed with her. She
is his grandmother, has been part of his life since he was born, she believes she can
Licking County, Case No. 2022CA00017 12
provide a home for him and support him. Her support network has not met E.H. due to
his being hospitalized and then placed into foster care.
{¶60} Next, Palma Ashcraft retook the stand. Ms. Ashcraft testified she has not
spoken with Appellant about E.H.’s medical care. Appellant has only information provided
by J.H. or B.H.
{¶61} Ms. Palma observed Appellant’s visits with E.H. Appellant would play and
sing to E.H. E.H. looked to be enjoying himself, but after the visit he wanted to get away
from the visitation staff and back to his foster mom.
{¶62} Ms. Palma also testified that with Appellant’s history of physical abuse, it is
not in the best interest of E.H. to be placed with her. Ms. Palma also notes Appellant’s
work schedule would require E.H. to be shuffled around from Appellant to either her friend
or her nephew. Ms. Palma does not believe this is a good situation for a child with special
needs.
{¶63} Mr. Collins then testified that he still believes it is not in the best interest of
E.H. to be placed with Appellant. Mr. Collins is concerned about Appellant’s financial
position. He also believes E.H. is bonded to his foster family. Mr. Collins disagrees with
Appellant that removing E.H. from his foster family would not be traumatizing. E.H. has
bonded significantly with his foster family, and any removal will have an impact on the
child, especially removing him from his foster mother. He believes it is in the best interest
of E.H. to be placed in the Agency’s permanent custody.
{¶64} On February 18, 2021, the Magistrate issued a decision denying Appellant
legal custody of E.H., and granting permanent custody of E.H. to the Agency.
{¶65} On March 3, 2021, Appellant objected to the Magistrate’s Decision.
Licking County, Case No. 2022CA00017 13
{¶66} On March 4, 2021, Appellant objected to the Magistrate’s Decision.
{¶67} On March 1, 2022, the trial court adopted the decision of the Magistrate
above Appellant’s and Appellant’s objections.
{¶68} On March 28, 2022, Appellant filed a Notice of Appeal.
{¶69} On May 25, 2022, Appellant filed a merit brief with this Court.
{¶70} On June 17, 2022, this Court granted Appellee’s Motion for Extension of
Time to file a Brief.
{¶71} Appellee did not file a merit brief arguing Appellee’s case.
ASSIGNMENT OF ERROR
{¶72} Appellant timely filed her notice of appeal and raises the following two
Assignment of Error:
{¶73} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY
TO AGENCY WHEN THE MANIFEST WEIGHT OF THE EVIDENCE SUPPORTED THE
CONCLUSION THAT A LEGALLY SECURE PERMANENT PLACEMENT COULD BE
ACHIEVED IN MATERNAL GRANDMOTHER, [APPELLANT]’S CUSTODY WITHOUT
THE GRANTING OF PERMANENT CUSTODY AND TERMINATION OF PARENTAL
RIGHTS.
{¶74} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE
MOTION FOR LEGAL CUSTODY TO GRANDMOTHER AND AWARDING LEGAL
CUSTODY TO THE AGENCY.”
Licking County, Case No. 2022CA00017 14
I., II.
{¶75} We address Appellant’s assignments of error together. Appellant argues the
trial court erred in denying Appellant’s motion for legal custody and granting permanent
custody to the Agency. We disagree.
{¶76} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. We must determine whether there is relevant, competent and
credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). Accordingly,
judgments supported by some competent, credible evidence going to all the essential
elements of the case will not be reversed as being against the manifest weight of the
evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d 578(1978). When reviewing for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “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 decision must be
reversed and a new trial ordered.” Matter of A.D., 5th Dist. Guernsey No. 19 CA 20, 2019-
Ohio-3671, ¶9.
{¶77} A trial court may award legal custody to a non-parent after finding that legal
custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C. 2151.415(B); Stull v
Richland Cty. Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-
Ohio-738, 71 N.E.3d 660, ¶22. The court’s determination as to whether the facts make it
Licking County, Case No. 2022CA00017 15
in the child’s best interest to be placed in legal custody, an appellate court applies the
abuse of discretion standard. Id.{¶78} In order to find an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶79} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. §2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all
essential elements of the case supports the trial court’s judgment, an appellate court must
affirm the judgment and not substitute its judgment for that of the trial court. C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶80} Issues relating to the credibility of witnesses and the weight to be given to
the evidence are primarily for the trier of fact. Seasons Coal vs. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much evidence in the parties’
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demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77
Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.
{¶81} This Court set forth a trial court’s analysis of a permanent custody motion
in In the Matters of: A.R., B.R., W.R., 5th Dist. Stark Nos. 2018CA00091, 2018CA00097,
2018CA00098, 2019-Ohio-389. When deciding a motion for permanent custody a trial
court must follow guidelines provided in R.C. §2151.414. R.C. §2151.414(A)(1) mandates
the trial court schedule a hearing and provide notice upon filing of a motion for permanent
custody of a child by a public children services agency or private child placing agency
that has temporary custody of the child or has placed the child in long-term foster care.
{¶82} R.C. §2151.414(B) authorizes the juvenile court to grant permanent custody
of the child to the public or private agency if the court determines, by clear and convincing
evidence, it is in the best interest of the child to grant permanent custody to the agency,
and that any of the following apply: (a) the child is not abandoned or orphaned, and the
child cannot be placed with either of the child’s parents within a reasonable time or should
not be placed with the child’s parents; (b) the child is abandoned; (c) the child is orphaned
and no relatives of the child are able to take permanent custody; or (d) the child has been
in the temporary custody of one or more public children’s services agencies or private
child placement agencies for twelve or more months of a consecutive twenty-two month
period.
{¶83} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
Licking County, Case No. 2022CA00017 17
§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶84} In the case sub judice, the trial court found E.H. has been in the custody of
the Agency for longer than twelve (12) of the last twenty-two (22) consecutive months.
Pursuant to R.C. §2151.414(B)(1)(a), the trial court also found E.H. could not be placed
with either of the parents within a reasonable time or should not be placed with E.H.’s
parents.
{¶85} In making this decision, the trial court must consider the factors of R.C.
§2151.414(E), which states, in relevant part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be with the parents, the court shall
consider all relevant evidence. If the court determines, by clear and
convincing evidence at a hearing held pursuant to division (A) of this section
or for 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:
(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
Licking County, Case No. 2022CA00017 18
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.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code;
(3) The parent committed any abuse as described in section
2151.031 of the Revised Code against the child, caused the child to suffer
any neglect as described in section 2151.03 of the Revised Code, or
allowed the child to suffer any neglect as described in section 2151.03 of
the Revised Code between the date that the original complaint alleging
abuse or neglect was filed and the date of the filing of the motion for
permanent custody;
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child when
Licking County, Case No. 2022CA00017 19
able to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
***
(16) Any other factor the court considers relevant.
{¶86} In determining whether the child can be placed with either parent within a
reasonable time, the court stated that it had considered all relevant evidence and all
factors specifically enumerated in R.C. §2151.414(E). Based on the testimony presented,
the trial court found that E.H. had been in temporary custody of the Agency for more than
twelve months out of a consecutive twenty-two-month period.
{¶87} The trial court further found that efforts made by the Agency to work with
the parents of E.H. have been reasonable and appropriate and followed E.H.’s best
interest. The Agency used reasonable efforts to prevent the removal of E.H. from the
home, to remedy the conditions that led to removal of E.H., and to make it possible for
E.H. to return home. Specifically, the trial court found these reasonable efforts based on
the following actions taken by the Agency: identified areas of concern related to J.H. and
B.H., the need to address substance abuse and mental health issues, stability of housing
and income, and demonstrate appropriate parenting practices, facilitation of visits with
Appellant, B.H., and J.H., foster placement, and case planning for both B.H. and
Appellant.
{¶88} “The discretion which the juvenile court enjoys in determining whether an
order of permanent custody is in the best interest of a child should be accorded the utmost
respect, given the nature of the proceeding and the impact the court’s determination will
have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.
Licking County, Case No. 2022CA00017 20
2000CA0024, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 95 Ohio App.3d 309,
316, 642 N.E.2d 424 (8th Dist. 1994).
{¶89} In determining the best interest of the child at a permanent custody hearing,
R.C. §2151.414(D)(1) requires the trial court must consider all relevant factors, including,
but not limited to the following:
(a) The interaction and interrelationship of the child with the child’s
parents, siblings, relatives, foster caregivers and out-of-home providers,
and any other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or
through the child’s guardian ad litem, with due regard for the maturity of the
child;
(c) The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two month period, or the child has been in the
temporary custody of one or more public children services agencies or
private child placement agencies for twelve or more months of a
consecutive twenty-two month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state;
(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;
Licking County, Case No. 2022CA00017 21
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
{¶90} No one element is given greater weight or heightened significance. In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816.
{¶91} “A child’s best interest are served by the child being placed in a permanent
situation that fosters growth, stability, and security. In re P.S., 5th Dist. Licking No. 16-CA-
11, 2016-Ohio-3489, ¶57. A relative’s willingness to care for the child does not alter the
court’s considerations in deciding permanent custody. Id.{¶92} The trial court’s decision indicates it considered the best interest of the child.
The trial court concluded the child’s need for legally secure placement could not be
achieved without awarding permanent custody to the Agency. Upon review of the entire
record, it is clear that the record supports the trial court’s finding that granting the motion
for permanent custody is in the child’s best interest.
{¶93} J.H. exposed E.H. to J.H.’s substance abuse, lack of stable housing,
domestic violence, and mental health issues. E.H. was born twenty-eight weeks
premature, addicted to marijuana and cocaine. E.H. has been diagnosed with early
cerebral palsy and had to be hospitalized due to weight loss and lack of development.
J.H. did not complete substance abuse and mental health courses and consistently tested
positive for controlled substances, mostly marijuana and methamphetamine. J.H. never
obtained steady employment or secured appropriate, stable housing. B.H., while
attending substance abuse classes, does not acknowledge the illegality of marijuana and
has no intention of quitting. B.H. was not present at the hearings for permanent custody
Licking County, Case No. 2022CA00017 22
or legal custody. B.H. has acknowledge that he is not in a position to care for a child with
special needs.
{¶94} The Agency also explored placing E.H. with Appellant. Appellant, E.H.’s
maternal grandmother, moved to request legal custody of E.H. The trial court found
Appellant had failed to recognize and appreciate the significant ties E.H. has with his
foster family. E.H. has a limited relationship with Appellant, and while the trial court noted
Appellant cares for the child, E.H. turns to his foster family for reassurance and comfort.
E.H.’s special needs have affected his ability to bond with Appellant
{¶95} E.H. shows visible excitement when around his foster parents and siblings,
and displays trust and ease towards them. His foster parents have managed his cerebral
palsy and he is thriving under their care. They ensure he attends all therapy and medical
appointments and are well versed in his special needs. The foster parents have a safe,
stable home, and are committed to E.H. and desire to adopt him. The trial court found
that E.H.’s best interests will be served by denying Appellant’s motion for legal custody
and granting the Agency permanent custody.
{¶96} The guardian ad litem recommended permanent custody be granted to the
Agency because E.H. could not be safely reunited with the parents. He has concerns
about Appellant financially meeting the needs of herself and E.H., and that E.H. has
bonded significantly with his foster family.
{¶97} We find that the trial court’s determination that permanent custody to the
Agency was in the child’s best interest was based upon competent, credible evidence,
and was not against the manifest weight of the evidence. The trial court did not abuse its
Licking County, Case No. 2022CA00017 23
discretion in finding it was not in the child’s best interest to be placed in Appellant’s legal
custody.
{¶98} Appellant’s first and second Assignments of Error are overruled.
{¶99} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division of Licking County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Hoffman, J., concur.
JWW/br 0830