In re N.M.P.

[Cite as In re N.M.P., 2018-Ohio-5072.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
IN THE MATTER OF: : OPINION
N.M.P., DEPENDENT CHILD.
:
CASE NO. 2018-P-0056
Civil Appeal from the Portage County Court of Common Pleas, Juvenile Division.
Case No. 2018 JCF 00506.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Brandon J. Wheeler, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Appellee Portage
County Department of Job and Family Services).
Neil P. Agarwal, 3732 Fishcreek Road, Suite 288, Stow, OH 44224-4379 (For
Appellant Nicole Hofeldt).
Richard C. Lombardi, 240 South Chestnut Street, Ravenna, OH 44266 (Guardian ad
litem).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Nicole Hofeldt, appeals from the July 25, 2018 judgment entry of
the Portage County Court of Common Pleas, Juvenile Division, terminating her parental
rights to her child, N.M.P. (D.O.B. 4/11/2007), and granting permanent custody to the
Portage County Department of Job and Family Services (“PCDJFS”). The trial court’s
judgment is affirmed.
{¶2} On May 24, 2017, N.M.P. was removed from appellant, who was unable to
provide him with a stable environment. In case No. 2017 JCC 489, N.M.P. was
adjudicated dependent and placed in the temporary custody of PCDJFS.
{¶3} On June 5, 2018, PCDJFS filed a motion for permanent custody of N.M.P.,
which was assigned case No. 2018 JCF 00506. The motion stated that “[p]ursuant to
R.C. 2151.414(B)(b) and 2151.414(B)(1)(d) N.M.P. has been in the custody of PCDJFS
for twelve or more months of a consecutive twenty-two month period.” The motion
alleged:
The child, N.M.P. was removed from his mother on May 24, 2017
and placed in the interim pre-dispositional custody of PCDJFS by
Court Order on May 25, 2017. Adjudication was held on June 14,
2017. N.M.P. has been in the custody of PCDJFS pursuant to a
Dispositional Order since August 30, 2017. N.M.P. has remained in
the temporary custody of PCDJFS from August 30, 2017 to
present. * * * Prior to the current action, N.M.P. was in the
temporary custody of PCDJFS from March 11, 2015 until March 10,
2017 under case No. 2015 JCC 183. On March 11, 2017 N.M.P.
was returned to the legal custody of his mother, [appellant]. N.M.P.
was then re-removed from the custody of his mother on May 24,
2017 and this current action began.
The motion further stated: “Additionally, [p]ursuant to R.C. 2151.011(C) N.M.P. has
been abandoned by his parents. Neither of N.M.P.’s parents have visited or had any
contact whatsoever with N.M.P. since July 20, 2017.” The motion also alleged facts
indicating it was in N.M.P.’s best interest to be placed in the permanent custody of the
agency.
{¶4} A guardian ad litem was appointed for N.M.P., and appellant was appointed
counsel. A hearing was held on July 16, 2018, at which Kelly Davis, the PCDJFS
caseworker, and Attorney Richard Lombardi, the guardian ad litem, testified. Neither
appellant nor N.M.P.’s father appeared; however, appellant’s attorney was present.
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{¶5} As a preliminary matter, certified copies of the record from 2017 JCC 489
were entered into evidence.
{¶6} Ms. Davis testified that appellant and N.M.P.’s father failed to meet the
objectives of their case plans, had minimal contact with N.M.P., and were unable to
provide legally secure housing for N.M.P. Ms. Davis testified that appellant was on
probation and struggled with drug use and mental health issues. Ms. Davis had been
unable to locate or successfully contact appellant and last had contact with her on
October 2, 2017. Both appellant and N.M.P.’s father were permitted visits with N.M.P.
twice a month for two hours. Ms. Davis testified that appellant attended one out of 28
visits, and N.M.P.’s father did not attend any visits.
{¶7} Ms. Davis testified that N.M.P. was placed with a foster family with whom he
has developed a bond. N.M.P. also has a biological half-sister with whom he has a
bond, and N.M.P.’s foster parents are supportive of N.M.P. maintaining a relationship
with her.
{¶8} Ms. Davis investigated N.M.P.’s relatives as potential legal custodians, but
the relatives expressed no interest in taking legal custody of N.M.P.
{¶9} The trial court allowed Ms. Davis to provide testimony regarding N.M.P.’s
wishes and his best interest over the objections of appellant’s counsel. Ms. Davis
stated that she discussed N.M.P.’s wishes with both N.M.P. and the guardian ad litem
and indicated she believed granting permanent custody to the agency would be in
N.M.P.’s best interest. Ms. Davis stated:
N.M.P. states he wants normal parents. [H]e feels that he was
cheated by having Nicole and John as his parents, and he wants
the family that he sees with [his foster parents] and their two
children. [T]hey give him security. He feels safe. He doesn’t feel
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threatened. He knows tomorrow when he wakes up it’s going to be
the same old routine as two weeks ago when he woke up.
{¶10} Ms. Davis testified that N.M.P. has been in the temporary custody of the
agency for 12 of the preceding 22 months, inclusive of cases prior to 2017 JCC 489.
Appellant’s counsel objected to Ms. Davis’ testimony about the previous cases because
those records were not in evidence. Counsel for PCDJFS requested the trial court take
judicial notice of 2015 JCC 183. Although appellant’s counsel objected to the court’s
taking judicial notice, the trial judge indicated he would review 2015 JCC 183.
{¶11} Attorney Lombardi testified1 that N.M.P.’s foster family loves and is bonded
with him. He further testified that N.M.P. has “no desire, none, to be with [appellant]”
and explained he spoke with “the child on more than one occasion, and [N.M.P.] made it
very clear that he does - - absolutely does not want to have contact with [appellant] or
her family.” Attorney Lombardi further stated: “[T]his child wants more than anything on
earth to stay and live with [his foster family]. I believe it’s in the child’s best interest, and
I’ve never felt stronger about a case.”
{¶12} After the hearing, on July 20, 2018, PCDJFS filed certified copies of journal
entries from 2015 JCC 183 in the trial court.
{¶13} The trial court entered judgment on July 25, 2018. The trial court
determined that “[p]ursuant to R.C. 2151.414(B) N.M.P. has been abandoned by his
parents”; “[p]ursuant to R.C. 2151.414(B)(1)(a) * * * N.M.P., cannot nor should not [sic]
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. After counsel for PCDJFS indicated he did not intend to call Attorney Lombardi as a witness, the trial judge
requested that Attorney Lombardi testify and give the court his impressions regarding N.M.P. The parties and court
agreed that the guardian ad litem would not be sworn in prior to giving his testimony. We further note a guardian ad
litem’s report is not part of our record on appeal. At the hearing, Attorney Lombardi indicated he filed a report in
the case for N.M.P.’s half sister. He explained that that report applied to both children. He provided the report to
the trial judge at the hearing, and copies were made for appellant’s attorney. Although appellant’s counsel raised an
objection regarding the report at the hearing, appellant has not raised any issue about the report on appeal.
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be placed with his parents within a reasonable amount of time”; and “[p]ursuant to R.C.
2151.414(B)(1)(d) * * * N.M.P., has been in the Temporary Custody of [PCDJFS] for at
least twelve (12) months of a consecutive twenty-two (22) month period, inclusive of
Case No. 2015 JCC 183.” Further, the trial court made findings regarding N.M.P.’s best
interest. The trial court ordered appellant’s parental rights permanently terminated and
that N.M.P. be placed in the permanent custody of PCDJFS.
{¶14} Appellant noticed a timely appeal. She asserts six assignments of error.
{¶15} Appellant’s first assignment of error states:
{¶16} “The trial court committed reversible error when it allowed a children
services protective caseworker to testify as to the child’s best interest and present
inadmissible hearsay regarding the child’s wishes.”
{¶17} Appellant first argues the trial court erred when it allowed the caseworker to
“testify as to her opinion as to what is in the best interest of the child.” In support,
appellant directs us to consider In re Ridenour, 11th Dist. Lake Nos. 2003-L-146, et seq.
2004-Ohio-1958; In re A.K., 9th Dist. Summit No. 26291, 2012-Ohio-4430; and In re
Smith, 9th Dist. Summit No. 20711, 2002 WL 5178 (Jan. 2, 2002). Those cases provide
that under R.C. 2151.414(D)(1)(b), a child’s wishes must be expressed either directly by
the child or through the guardian ad litem, and a caseworker’s testimony cannot be
considered as an expression of the child’s wishes in lieu of a guardian ad litem’s report.
Ridenour, supra, at ¶47; A.K., supra, at ¶27; Smith, supra, at *6. Appellant, however,
has failed to direct us to any authority that stands for the proposition that a caseworker
is precluded from testifying as to his or her opinion regarding the best interest of a child.
Appellant’s argument is not well taken.
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{¶18} Appellant next argues the caseworker’s testimony regarding N.M.P.’s
wishes was hearsay and should have been excluded at the hearing.
{¶19} “‘Hearsay’ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). The trial court does not have discretion to admit hearsay
“except as otherwise provided by the Constitution of the United States, by the
Constitution of the State of Ohio, by statute enacted by the General Assembly not in
conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules
prescribed by the Supreme Court of Ohio.” Evid.R. 802. See also State v. DeMarco, 31
Ohio St.3d 191, 195 (1987). Therefore, we apply a de novo review to determine
whether the testimony here constitutes hearsay or non-hearsay. See John Soliday Fin.
Group, L.L.C. v. Pittenger, 190 Ohio App.3d 145, 2010-Ohio-4861, ¶28 (5th Dist).
{¶20} To determine the best interest of a child, the trial court must consider a
specific non-exclusive list of factors set forth in R.C. 2151.414(D)(1), including “[t]he
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[.]” R.C. 2151.414(D)(1)(b); see also
In re M.J., 11th Dist. Ashtabula No. 2011-A-0007, 2011-Ohio-2714, ¶54; In re Jacobs,
11th Dist. Geauga No. 99-G-2231, 2000 WL 1227296, *4 (Aug. 25, 2000). Thus, R.C.
2151.414(D)(1)(b) authorizes the guardian ad litem in a permanent custody hearing to
give hearsay testimony regarding a child’s wishes. See Sypherd v. Sypherd, 9th Dist.
Summit No. 25815, 2012-Ohio-2615, ¶13. However, the clear language of the statute
indicates the child’s wishes may only be expressed directly by the child or through the
guardian ad litem. Ridenour, supra, at ¶47 (citations omitted). “[A] caseworker’s
testimony cannot be considered as an expression of the minor child’s wishes in lieu of
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the GAL’s report.” In re T.L.M., 11th Dist. Portage Nos. 2010-P-0008, et seq., 2010-
Ohio-3553, ¶47, citing Ridenour, supra, at ¶47.
{¶21} It was error for the trial court to allow the caseworker’s testimony regarding
N.M.P.’s wishes over the objection of appellant’s counsel. The error, however, was
harmless. The trial court determined that N.M.P. was capable of verbalizing his own
wishes. Further, the guardian ad litem was present at the hearing and testified
regarding N.M.P.’s wishes. The guardian ad litem gave compelling testimony that
N.M.P. wished to stay with his foster family and did not want to return to his parents and
supported that testimony with the reasons underlying N.M.P.’s wishes. There is no
testimony disputing that of the guardian ad litem. Further, the trial court did not state
that it relied exclusively on the caseworker’s testimony, and its judgment entry indicates
it considered the guardian ad litem’s testimony.
{¶22} Appellant contends the guardian ad litem’s “testimony does not constitute
evidence upon which the trial court may make any factual findings.” Appellant
essentially argues that the guardian ad litem’s testimony about N.M.P.’s wishes must be
excluded as hearsay.
{¶23} Evid.R. 802 provides that “[h]earsay is not admissible except as otherwise
provided by * * * statute enacted by the General Assembly not in conflict with a rule of
the Supreme Court of Ohio[.]” As stated above, R.C. 2151.414(D)(1)(b) authorizes the
guardian ad litem to give hearsay testimony regarding the child’s wishes. See Sypherd,
supra, at ¶13. To the extent appellant argues the guardian ad litem’s testimony was
hearsay because N.M.P. was capable of expressing his own wishes, the Ohio Supreme
Court has held that R.C. 2151.414(D)(1)(b) “unambiguously gives the trial court the
choice of considering the child’s wishes directly from the child or through the guardian
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ad litem.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶55 (emphasis added).
Appellant’s argument is not well taken.
{¶24} Appellant’s first assignment of error is without merit.
{¶25} Appellant’s fifth assignment of error states:
{¶26} “The trial court committed reversible error when in granting permanent
custody under R.C. 2151.414(b)(1)(d) when the county children services agency has
not had agency involvement with the child for at least twenty-two consecutive months
prior to the filing of permanent custody.”
{¶27} Appellant argues that under R.C. 2151.414(B)(1)(d), PCDJFS was required
to have agency involvement with N.M.P. for at least 22 months before it could file for
permanent custody.
{¶28} We review the trial court’s interpretation and application of a statute under
a de novo standard of review. State v. Phillips, 11th Dist. Trumbull No. 2008-T-0036,
2008-Ohio-6562, ¶11. “De novo review is independent and without deference to the
trial court’s determination.” State v. Henderson, 11th Dist. Portage No. 2010-P-0046,
2012-Ohio-1268, ¶10 (citation omitted).
{¶29} “A primary rule of statutory construction is to apply the statute as it is
written when its meaning is unambiguous and definite.” In re J.C., 9th Dist. Summit No.
28865, 2018-Ohio-2555, ¶13, citing State ex rel. Savarese v. Buckeye Local School
Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996) & R.C. 1.49. A court may not ignore or
add words when construing a statute. Id., citing State ex rel. Burrows v. Indus. Comm.
of Ohio, 78 Ohio St.3d 78, 81 (1997); see also Blair v. Sugarcreek Twp. Bd. of Trustees,
132 Ohio St.3d 151, 2012-Ohio-2165, ¶19.
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{¶30} R.C. 2151.414(B)(1)(d) provides that a court may grant permanent custody
of a child to an agency “if the court determines at the hearing held pursuant to division
(A) of this section, by clear and convincing evidence, that it is in the best interest of the
child to grant permanent custody to the agency * * * and * * * [t]he child has been in the
temporary custody of one or more public children services agencies * * * for twelve or
more months of a consecutive twenty-two month period[.]”
{¶31} Appellant directs this court to follow the Sixth District Court of Appeals’
interpretation of the “12 of 22” language as set forth in In re K.L., 6th Dist. Lucas Nos. L-
17-1201 & L-7-1210, 2017-Ohio-9003. In that case, the Sixth District interpreted the
language, “consecutive twenty-two-month period,” to mean 22 consecutive months of
agency involvement. Id. at ¶48 (“If the 22-consecutive months does not mean 22
months of agency involvement, there was no need to set forth that number in the
statute.”). Pursuant to this interpretation, the agency must be involved with a child for at
least 22 months before it can file a motion for permanent custody. See id. at ¶40.
{¶32} By construing “a consecutive twenty-two-month period” to require 22
months of agency involvement, the Sixth District added language to the statute, altering
its plain and unambiguous meaning. See J.C., supra, at ¶11-13; In re H.M., 2d Dist.
Greene No. 2017-CA-42, 2018-Ohio-989, ¶14-18. We decline to adopt the Sixth
District’s interpretation of R.C. 2151.414(B)(1)(d).
{¶33} Further, this court has previously construed the language of R.C.
2151.414(B)(1)(d) as requiring 12 or more months of temporary custody in a
consecutive 22 month period. See In re Stilllman, 11th Dist. Ashtabula No. 2003-A-
0063, 2003-Ohio-6228, ¶51; In re Cather, 11th Dist. Portage Nos. 2002-P-0014, et seq.,
2002-Ohio-4519, ¶43; In re M.G., 11th Dist. Geauga No. 2013-G-3162, 2014-Ohio-974,
9
¶15. Accordingly, “[i]f, at the time the agency moves for permanent custody, the child
has been in the temporary custody of one or more children services agencies for a total
of 12 months out of a 22-month time period, R.C. 2151.414(B)(1)(d) is satisfied.” J.C.,
supra, at ¶11. Appellant’s argument is not well taken.
{¶34} Appellant’s fifth assignment of error is without merit.
{¶35} Appellant’s second assignment of error states:
{¶36} “The trial court committed reversible error when it took judicial notice of a
separate proceeding during the permanent custody hearing.”
{¶37} Appellant contends the trial court improperly took judicial notice of 2015
JCC 183 to establish that N.M.P. had been in the agency’s custody for 12 months of a
consecutive 22 month period under R.C. 2151.414(B)(1)(d).
{¶38} “A trial court may not take judicial notice of prior proceedings in the court
but may only take judicial notice of prior proceedings in the immediate case.”
Diversified Mtge. Investors, Inc. v. Athens Cty. Bd. of Revision, 7 Ohio App.3d 157, 157
(4th Dist.1982); see also In re Knotts, 109 Ohio App.3d 267, 271 (3d Dist.1996);
Woodman v. Tubbs Jones, 103 Ohio App.3d 577, 580 (8th Dist.1995); and Johnson v.
Summit Cty. Court of Common Pleas, 11th Dist. Geauga No. 2014-G-3207, 2015-Ohio-
211, ¶4, quoting State v. Blaine, 4th Dist. Highland No. 03CA9, 2004-Ohio-1241, ¶17
(collecting cases). The rationale behind this rule is that, “‘if a trial court takes notice of a
prior proceeding, the appellate court cannot review whether the trial court correctly
interpreted the prior case because the record of the prior case is not before the
appellate court.’” Johnson, supra, at ¶4, quoting Blaine, supra, at ¶17.
{¶39} “Even if the separate prior case was heard by the identical trial court, that
court cannot take judicial notice of any determination made in the separate case.
10
Rather, any detail about the separate case can only be established through the
submission of evidence.” Johnson, supra, at ¶5, citing In re Pyle, 7th Dist. Belmont No.
91-B-27, 1992 WL 98028, *1 (May 6, 1992); see also State v. Baiduc, 11th Dist.
Geauga No. 2006-G-2711, 2007-Ohio-4963, ¶24.
{¶40} These concerns are not at issue in this case. PCDJFS referenced 2015
JCC 183 in its motion for permanent custody. At the permanent custody hearing, the
caseworker testified that N.M.P. had previously been in the temporary custody of the
agency. She testified she had that knowledge because she has “access to previous
court records, the previous case plans.” On July 20, 2018, certified copies of a
magistrate’s order and several journal entries from 2015 JCC 183 were filed with the
trial court. These documents are part of our record on appeal. Accordingly, it was not
error for the trial court to consider these documents as evidence that N.M.P. has
previously been in temporary agency custody.
{¶41} Appellant’s second assignment of error is without merit.
{¶42} Appellant’s third assignment of error states:
{¶43} “The trial court committed reversible error when it allowed the State to
supplement the record after the permanent custody hearing in violation of Mother’s right
to due process.”
{¶44} Appellant argues the trial court engaged in a “trial by ambush” and violated
her due process rights when it “allowed [PCDJFS] to submit documents after the
permanent custody hearing had concluded, did not give a copy of those documents to
Mother, did not give Mother a reasonable opportunity to review or object to the
submission of those documents before, during, or after the permanent custody hearing,
11
and especially for the trial court to rely upon those documents in the granting of
permanent custody to PCDJFS.”
{¶45} “A parent’s right to raise his or her children is an ‘essential’ and ‘basic’ civil
right.” In re Sheffey, 11th Dist. Ashtabula No. 2005-A-0063, 2006-Ohio-619, ¶22,
quoting In re Murray, 52 Ohio St.3d 155, 157 (1990). “The fundamental liberty interest
of natural parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents or have lost temporary
custody of their child to the state.” Id., citing Santosky v. Kramer, 455 U.S. 745, 753
(1982). “Accordingly, when the state initiates a permanent-custody proceeding, parents
must be provided with fundamentally fair procedures in accordance with the due
process provisions under the Fourteenth Amendment to the United States Constitution
and Section 16, Article I of the Ohio Constitution.” Id. at ¶21.
{¶46} In the context of permanent custody proceedings, the issue of
supplemental evidence submitted after the hearing has arisen when a guardian ad litem
filed his or her report subsequent to the hearing. In this context, “[o]nce the trial court
makes the decision to allow evidence to enter the record after the hearing, the trial court
should provide an opportunity for cross-examination and the presentation of rebuttal
evidence.” In re Kangas, 11th Dist. Ashtabula No. 2006-A-0010, 2006-Ohio-3433, ¶37,
citing Webb v. Lane, 4th Dist. Athens No. 99CA12, 2000 WL 290383, *3 (Mar. 15,
2000). “‘Without these safeguards, there are no measures to ensure the accuracy of
the information provided and the credibility of those who made statements.’” Id.,quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368, ¶25.
{¶47} We do not determine that appellant’s due process rights were violated. As
stated above, PCDJFS referred to 2015 JCC 183 in its motion for permanent custody.
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Further, the credibility of the certified copies from 2015 JCC 183 is readily
ascertainable, and appellant concedes she was notified the documents had been
submitted on the same day they were filed. Appellant also had the opportunity to cross-
examine the caseworker about the existence of the previous case. See Ridenour,
supra, at ¶28 (determining that where the guardian ad litem is subject to cross-
examination at the permanent custody hearing and the untimely report does not provide
any new or different evidence, a parent is not prejudiced by submission of the untimely
report and no additional hearing is required).
{¶48} At the hearing, appellant’s counsel stated he needed to confront the
records from 2015 JCC 183 to determine whether it involved the same mother and child
and whether the child was placed in the temporary custody of the agency in that case.
Appellant’s counsel could have disputed those facts during the hearing but did not, and
there is no genuine issue that 2015 JCC 183 pertains to appellant and N.M.P. That
information is apparent from the face of the 2015 JCC 183 documents. Further, the
record from 2017 JCC 489, which is part of our record on appeal, indicates N.M.P. was
previously removed from appellant and placed in agency custody. A case review dated
November 2, 2017, states: “This is the second time [N.M.P.] has been in JFS custody. *
* * His mom gained custody back in March 2017 but came to the agency and stated she
could not provide a safe and stable home for [N.M.P.].” The case review further states:
“[N.M.P.] was removed from [appellant’s] custody in March 2015 and returned to his
mothers [sic] custody in March 2017 and then re-removed for the same concerns in May
2017.”
{¶49} Appellant’s third assignment of error is without merit.
{¶50} Appellant’s sixth assignment of error states:
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{¶51} “The trial court committed reversible error when in granting permanent
custody under R.C. 2151.414(b)(1)(d), as that finding is against the manifest weight of
the evidence.” [sic.]
{¶52} “‘R.C. 2151.414 sets forth a two-part test governing whether to award
permanent custody to a public services agency.’” In re K.M., 11th Dist. Trumbull No.
2017-T-0059, 2017-Ohio-8286, ¶36, quoting In re J.S., 8th Dist. Cuyahoga Nos. 101991
& 101992, 2015-Ohio-2701, ¶47. “First, after a hearing, the court must find by clear and
convincing evidence that granting permanent custody of the child to the agency is in the
best interest of the child upon considering all relevant factors including those in R.C.
2151.414(D).” Id. “‘Second, a court must make one of the findings delineated in R.C.
2151.414(B)(1)(a)-(e).” Id. at ¶37, quoting In re D.S., 11th Dist. Trumbull No. 2015-T-
0062, 2015-Ohio-4548, ¶72. In practice, courts make the second finding before
embarking on the best interest analysis. Id.{¶53} The juvenile court may terminate the rights of a natural parent and grant
permanent custody of the child to a children services agency only if it finds, by clear and
convincing evidence, that both prongs of the above test are met. In re Krems, 11th Dist.
Geauga No. 2003-G-2535, 2004-Ohio-2449, ¶36. “Clear and convincing evidence is
more than a mere preponderance of the evidence; it is evidence sufficient to produce in
the mind of the trier of fact a firm belief or conviction as to the facts sought to be
established.” Id., citing In re Holcomb, 18 Ohio St.3d 361, 368 (1985).
{¶54} “A reviewing court generally will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the evidence.” In
re D.M., 4th Dist. Hocking No. 15CA22, 2016-Ohio-1450, ¶10 (citations omitted); see
also In re S. Children, 5th Dist. Stark No. 2012-CA-00164, 2012-Ohio-6265, ¶24, citing
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Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179 & State v. Thompkins, 78
Ohio St.3d 380 (1997). In applying this standard, the appellate 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, supra, at ¶20; quoting Tewarson v. Simon,
141 Ohio App.3d 103, 115 (9th Dist.2001); quoting Thompkins, supra, at 387; quoting
State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶55} “‘Issues relating to the credibility of witnesses and the weight to be given
the evidence are primarily for the trier of fact.’” In re D.H., 11th Dist. Ashtabula No.
2017-A-0081, 2018-Ohio-630, ¶18, quoting In re West, 4th Dist. Athens No. 05CA4,
2005-Ohio-2977, ¶37.
{¶56} Appellant argues the trial court’s finding that N.M.P. was in agency custody
for 12 months of a consecutive 22 month period under R.C. 2151.414(B)(1)(d) was
against the manifest weight of the evidence. Appellant does not take issue with the trial
court’s findings regarding N.M.P.’s best interest.
{¶57} For purposes of computing 12 months of a consecutive 22 month period, a
child is considered to have entered the temporary custody of an agency on the earlier of
the date the child is adjudicated or the date that is 60 days after the removal of the child
from the home. R.C. 2151.414(B)(1).
{¶58} We do not conclude the trial court’s finding under R.C. 2151.414(B)(1)(d)
indicates the trier of fact clearly lost its way. In 2015 JCC 183, N.M.P. was placed in the
interim predispositional custody of PCDJFS on March 12, 2015. The journal entry from
the adjudicatory hearing was filed on April 24, 2015. Temporary custody was granted to
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PCDJFS on May 28, 2015. N.M.P. remained in the temporary custody of PCDJFS until
March 14, 2017, when he was ordered returned to appellant. In 2017 JCC 489, on May
24, 2017, N.M.P. was again placed in the interim predispositional custody of the
agency. He was adjudicated dependent on June 22, 2017, and temporary custody was
granted to the agency on August 30, 2017. Inclusive of 2015 JCC 183, N.M.P. was in
temporary agency custody for 12 or more months out of the 22 consecutive months
preceding the filing of the motion for permanent custody. Accordingly, the trial court’s
finding under R.C. 2151.414(B)(1)(d) was not against the manifest weight of the
evidence.
{¶59} Appellant argues that even considering 2015 JCC 183, the trial court’s
finding that PCDJFS met the requirements of R.C. 2151.414(B)(1)(d) is against the
manifest weight of the evidence because N.M.P. was returned to the custody of
appellant between cases. However, “[t]he statute requires only that the child must have
been in the custody of a public agency for twelve or more months of a consecutive
twenty-two month period. This might include a situation where a child had been in
temporary custody for six months on one occasion, was briefly out of agency custody,
and then returned to temporary custody for another six months—all within a consecutive
twenty-two month period.” In re T.B., 9th Dist. Summit No. 21124, 2002-Ohio-5036,
¶23. Appellant’s argument is not well taken.
{¶60} Appellant’s sixth assignment of error is without merit.
{¶61} Appellant’s fourth assignment of error states:
{¶62} “The trial court committed reversible error when it granted permanent
custody upon grounds that were not brought to the attention of the parents in a timely
fashion.”
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{¶63} Appellant first takes issue with the trial court’s finding that “[p]ursuant to
R.C. 2151.414(B) N.M.P. has been abandoned by his parents.” Appellant argues there
is no specific ground for granting permanent custody under R.C. 2151.414(B).
However, it is clear the trial court was making a finding under R.C. 2151.414(B)(1)(b),
which provides that an agency may establish the second prong of the permanent
custody test if “[t]he child is abandoned.” This finding was supported by the record.
{¶64} Appellant next argues that granting permanent custody pursuant to R.C.
2151.414(B)(1)(b) violated her due process rights because that ground was not
asserted in PCDJFS’s motion for permanent custody. However, the motion for
permanent custody clearly states that “[p]ursuant to R.C. 2151.011(C) N.M.P. has been
abandoned by his parents.” Although the motion does not specifically cite to R.C.
2151.414(B)(1)(b), appellant had sufficient notice that abandonment was one of the
grounds being pursued by PCDJFS.
{¶65} Appellant further argues that the trial court’s finding under R.C.
2151.414(B)(1)(a) that N.M.P. “cannot nor should not [sic] be placed with his parents
within a reasonable amount of time” violated her due process rights because PCDJFS
did not assert this ground in its motion for permanent custody. “R.C. 2151.414(B)
requires a trial court to find the existence of only one of the R.C. 2151.414(B) factors.”
In re S.M., 4th Dist. Highland No. 14CA4, 2014-Ohio-2961, ¶28 (citation omitted).
Because we have determined the trial court’s findings under R.C. 2151.414(B)(1)(b) and
(d), which were included in the motion, were supported by the record, any error
associated with the trial court’s other findings under R.C. 2151.414(B)(1) is not
reversible error. Appellant’s argument is not well taken.
{¶66} Appellant’s fourth assignment of error is without merit.
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{¶67} Often these cases present difficult choices regarding termination of the
parental rights of a parent who has made attempts at being a parent. This is not one of
those cases. Appellant was afforded many opportunities for assistance with her
parenting but declined virtually all of them and did not even appear at the hearing to
state her intentions.
{¶68} The judgment of the Portage County Court of Common Pleas, Juvenile
Division, is affirmed.
THOMAS R. WRIGHT, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
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