In re G.W.

[Cite as In re G.W., 2022-Ohio-2581.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE G.W. :
:
Minor Child : No. 110938
:
[Appeal by D.W., Mother] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 28, 2022
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD18906317
Appearances:
Christina J. Joliet, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.
ON RECONSIDERATION1
EMANUELLA D. GROVES, J.:
Appellant-mother (“Mother”) appeals from the judgment of the
Cuyahoga County Common Pleas Court, Juvenile Division, granting permanent
custody of her minor child, G.W., to appellee, the Cuyahoga County Department of
Children and Family Services (“CCDCFS” or the “agency”).2 For the reasons that
follow, we affirm.
Procedural and Factual History
On May 14, 2018, CCDCFS filed a complaint alleging that G.W., born
August 17, 2013, was a neglected, abused, and dependent child as defined by R.C.
2151.03(A)(3), 2151.031(B), and 2151.04(B). The complaint averred, in part, the
following particulars:
1. Mother fails to provide a safe living environment for the child.
Mother has failed to protect herself and child from a domestically
violent boyfriend. Mother and a boyfriend have engaged in physical
domestic violence in the presence of the child at least three times in the
past four months and as recently as May 3, 2018.
2. Mother has untreated mental health issues which interfere with her
ability to provide care for the child. Mother has been diagnosed with
bipolar disorder and depression but is not engaged with services to
address her mental health. Mother has failed to comply with a court-
ordered mental health assessment.
1 The original announcement of decision, In re G.W., 8th Dist. Cuyahoga No.
110938, 2022-Ohio-1678, released May 19, 2022, is hereby vacated. This opinion, issued
upon reconsideration, is the court’s journalized decision in this appeal. See App.R. 22(C);
see also S.Ct.Prac.R. 7.01.
2 The child’s father, C.E. (“Father”), is not a party to this appeal, but will be
referenced in the discussion to provide context.
3. Mother has two criminal convictions for driving while under the
influence of alcohol. Mother has a criminal conviction for child
endangering due to G.W. being a passenger in the vehicle during one of
these incidents. Mother has unresolved matters before the Cleveland
Municipal Court and the Berea Municipal Court due to non-payment.
4. Mother uses marijuana while being the sole caregiver for the child.
Mother has been referred to multiple substance abuse assessments but
has failed to comply.
5. Father, C.E. (“Father”), has failed to support, visit, or communicate
with the child on a consistent basis and has had minimal involvement
with the child since birth.
Along with the complaint, CCDCFS filed a motion for predispositional
temporary custody of G.W. to the agency. In support, the agency indicated that G.W.
was then in the care of a maternal aunt pursuant to a safety plan that was executed
on May 4, 2018, and set to expire on June 4, 2018. The juvenile court granted
predispositional temporary custody to CCDCFS.
The agency developed and filed a case plan to assist Mother in
remedying the issues that led to CCDCFS’ involvement. To address Mother’s mental
health and substance-abuse issues, the agency required Mother to complete a
mental-health assessment, engage in counseling, and be compliant with all
medications. To address the domestic violence concerns, the agency required
Mother to participate in domestic violence classes.
Additionally, to address Mother’s housing issue, the agency required
Mother to maintain stable, safe, and appropriate housing for herself and G.W.
Further, the case plan included counseling for G.W., who had witnessed ongoing
domestic violence in the home between Mother and Mother’s boyfriend. Finally, to
address the agency’s concern that Father had not established a relationship with
G.W., the case plan required that Father establish a parent-child relationship with
G.W. and make arrangements to begin providing financial support
At a hearing on July 3, 2018, Mother denied the allegations in the
complaint. The juvenile court referred Mother to the public defender’s office for
legal assistance. The juvenile court also held in abeyance a motion filed by the
agency for temporary custody and ordered that G.W. remain in the placement with
the maternal aunt.
On August 9, 2018, at an adjudicatory hearing, Mother again denied
the allegations of the agency’s complaint. After hearing testimony, the juvenile court
found the allegations were proven by clear and convincing evidence and proceeded
to adjudicate G.W. abused and dependent. The juvenile court also found that “the
child’s continued residence in or return to [D.W.], Mother will not be contrary to the
child’s best interest.” In addition, the juvenile court ordered that upon verification
of Mother’s current housing, G.W. shall be returned to Mother and reside with her
at the domestic violence shelter.
On October 9, 2018, CCDCFS filed a motion to amend its previously
filed motion for predispositional temporary custody to agency, to that of legal
custody to Mother, with protective supervision. In the brief in support, CCDCFS
stated it believed the prayer for relief was the disposition that was in G.W.’s best
interest. After a hearing held January 16, 2019, the juvenile court placed G.W. in
the protective supervision of CCDCFS. The juvenile court also approved an
amended case plan requiring that Mother complete drug and alcohol assessments,
comply with substance-abuse treatment recommendations, and submit to random
drug tests. In addition, the juvenile court found that the permanency plan for the
child was legal custody to Mother.
On May 6, 2019, CCDCFS filed a motion for first extension of
protective supervision, noting that the then order would be expiring on May 13,
2019. In the brief in support, CCDCFS stated:
Mother has completed the following requirements: obtained and
maintained safe and stable housing, is able to provide for the child’s
basic needs, and completed an AOD assessment. However, Mother has
not completed the following objectives of the case plan: a
recommended intensive out-patient treatment program (“IOP”),
requested drug screens, the recommended mental health and domestic
violence services.
Following a hearing held on June 5, 2019, the juvenile court granted the agency’s
motion.
On July 1, 2019, CCDCFS filed a motion to modify protective
supervision to temporary custody. In the affidavit filed in support of the agency’s
motion, caseworker Norma De Jesus (“De Jesus”) averred that, on June 29, 2019,
Mother and child were involved in a car accident, resulting in injuries to both. De
Jesus also averred that Mother was driving while severely intoxicated and that G.W.
was not properly restrained in the car. After a hearing, the juvenile court found there
was probable cause for removal of G.W. from Mother’s care and that there was not
a suitable relative, who was willing to be a temporary custodian. Thus, the juvenile
court committed G.W. to the emergency care and custody of the agency.
At a hearing on September 23, 2019, Mother agreed to the agency’s
motion to modify protective supervision to temporary custody. By journal entry,
dated October 21, 2019, the juvenile court granted the agency’s motion for
temporary custody.
On May 28, 2020, CCDCFS filed a motion to modify temporary
custody to legal custody to G.W.’s maternal grandmother, S.M. In support of the
motion, CCDCFS noted that prior to filing the motion, the agency developed a case
plan to facilitate reunification, but Mother had failed to complete the objectives.
CCDCFS also noted that the agency referred Mother for mental health, domestic
violence, and substance-abuse services, but Mother was not compliant. In addition,
CCDCFS noted that Mother did not have safe, stable housing, and was not compliant
with the terms of her probation to the Cuyahoga County Court of Common Pleas.
CCDCFS further noted that G.W.’s maternal grandmother was able to provide for
the child’s daily needs and was willing to provide a permanent home.
On November 2, 2020, CCDCFS filed a motion to amend its prior
motion for legal custody to the maternal grandmother to a motion for permanent
custody. In support of the motion, CCDCFS asserted that the condition listed in R.C.
2151.414(B)(1) existed. Specifically, that G.W. had been in the temporary custody of
the agency for twelve or more months of a consecutive twenty-two-month period.
In the affidavit filed in support of the agency’s motion, caseworker Rayshawn
Eberhardt (“Eberhardt”) averred in pertinent part, as follows:
***
2. The child was committed to the pre-dispositional temporary custody
of CCDCFS on July 1, 2019
3. The child was adjudicated abused and dependent on September 10,
2018,
4. The child was committed to the temporary custody of CCDCFS on
October 25, 2019.
5. A case plan was filed with Juvenile Court and approved which
required that mother complete a substance abuse assessment and
comply with treatment recommendations, comply with random drug
screens, comply with mental health treatment and prescribed
medication, complete domestic violence classes, maintain stable and
appropriate housing, and maintain the ability to meet the child’s basic
needs.
6. Mother completed a substance abuse assessment and was
recommended for IOP. Mother failed to comply with the substance
abuse treatment recommendations and has failed to comply with
random drug screens.
7. Mother had failed to consistently comply with mental health
treatment.
8. Mother had not visited or communicated with the child since on or
about August 2020.
In response, on July 13, 2021, Mother filed a motion for legal custody
of G.W., asserting that she was ready and able to have physical care of G.W. and that
she had substantially complied with the case plan services.
On July 20, 2021, the juvenile court held a dispositional hearing.
Dispositional Hearing
At the hearing, CCDCFS presented the testimony of Eberhardt, who
testified in conformity with the above affidavit she provided in support of the
agency’s motion for permanent custody. Eberhardt, who inherited the case in
August 2020, testified that the case’s history revealed that Mother had not made
significant progress with the developed case plan and that Mother was inconsistent
in her engagement.
Eberhardt testified that although Mother had completed a mental-
health assessment, Mother failed to follow through with individual counseling and
that by the time of the hearing, Mother’s compliance with the mental health
component was unknown. Eberhardt explained that Mother failed to provide an
updated release to permit the provider to communicate with the agency. Eberhardt
noted that she made several efforts to meet with Mother to obtain the release, but
none ultimately successful.
Eberhardt testified about the substance abuse component, noting
that Mother completed an IOP, began aftercare, and tried to maintain sobriety, but
that, as of December 2020, Mother had failed to submit to any of the agency’s
random drug screens. Eberhardt also noted that in December 2020, Mother self-
reported that she had relapsed.
Eberhardt testified that Mother failed to complete the domestic
violence program the agency recommended, opting instead to complete an eight-
hour domestic violence class online. Eberhardt testified that the agency deemed the
online program insufficient, because of Mother’s long history of being in domestic
violent relationships. Eberhardt explained that the agency requested, and the
provider agreed, to combine the domestic violence mental health components.
Eberhardt testified that the agency referred Mother to the
Community Collaborative for assistance with her housing needs. Eberhardt stated
that towards the latter part of 2020, Mother did have independent housing, but at
the time of the trial, Mother still lacked stable housing.
Eberhardt testified she found it difficult to coordinate supervised
visits between Mother and G.W. Eberhardt stated that because Mother was not
consistent, the visits never became unsupervised. Eberhardt noted that G.W.
enjoyed the visits with Mother.
Eberhardt testified that Mother was initially responsive to her
encouragement to engage in the case plan, but then later it became increasingly
difficult to reach Mother either by phone calls or by texts. Eberhardt noted being
able to reach Mother sporadically and eventually discovering that Mother had been
jailed, because of a probation violation.
Eberhardt testified that G.W. was residing with a maternal aunt and
was receiving trauma-focused therapy. G.W.’s basic needs were being met and she
was thriving in the placement with the maternal aunt. Eberhardt explained that the
agency had planned to place G.W. with the maternal grandmother, but those plans
fell apart, when the maternal grandmother indicated that, based on her work
schedule, she would not be able to meet G.W.’s basic needs. Eberhardt noted that
the maternal grandmother offered that G.W.’s maternal aunt would be the best
person to care for the child and ensure that all needs were met.
Eberhardt opined that returning G.W. to mother would not serve the
child’s best interest and recommended that the juvenile court grant the agency’s
motion for permanent custody.
Thereafter, the juvenile court continued the proceedings, which
reconvened on September 17, 2021. At that time, G.W.’s guardian ad litem, Tom
Kozel, (the “GAL”), who previously filed a written report, orally recommended that
permanent custody be granted to the agency. The GAL noted that G.W. had been in
the agency’s custody beyond two years, that Mother had not been able to document
extended sobriety, and that the agency’s concern about Mother’s mental health
issues remained. In addition, the GAL noted that Mother had not procured safe and
stable housing throughout the history of the case. Finally, the GAL noted that G.W.
was in a home, with a relative that was committed to caring for the child.
On October 4, 2021, the juvenile court journalized an entry
terminating all parental rights and granting permanent custody to the agency.
Mother now appeals and raises the following sole assignment of error
for our review:
Assignment of Error
The trial court’s order granting permanent custody to the agency was
not based upon sufficient clear and convincing evidence, was against
the manifest weight of the evidence and it erred in finding permanent
custody to be in the best interest of the child.
Law and Analysis
In her sole assignment of error, Mother argues the juvenile court
erred in granting permanent custody to the agency because the decision is not
supported by clear and convincing evidence, is against the manifest weight of the
evidence, and not in G.W.’s best interest. Specifically, Mother maintains that she
substantially engaged in the objectives of the case plan.
At the outset, we note, it is well established that a parent has a
fundamental right to raise and care for his or her child. In re L.M., 8th Dist.
Cuyahoga No. 106072, 2018-Ohio-963, citing In re C.F., 113 Ohio St.3d 73, 2007-
Ohio-1104, 862 N.E.2d 816, ¶ 28; In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825,
895 N.E.2d 809, ¶ 40. We recognize that termination of parental rights is “the family
law equivalent of the death penalty in a criminal case.” In re V.C., 8th Dist. Cuyahoga
Nos. 102903, 103061, and 103367, 2015-Ohio-4991, citing In re J.B., 8th Dist.
Cuyahoga No. 98546, 2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d
92, 2002-Ohio-5368, 776 N.E.2d 485, ¶ 14.
An appellate court will not reverse a juvenile court’s decision
awarding permanent custody to an agency if the judgment is supported by clear and
convincing evidence. In re J.M-R., 8th Dist. Cuyahoga No. 98902, 2013-Ohio-1560,
¶ 28. “Clear and convincing evidence” is that measure or degree of proof that is more
than a “preponderance of the evidence,” but does not rise to the level of certainty
required by the “beyond a reasonable doubt” standard in criminal cases. In re K.S.,
8th Dist. Cuyahoga No. 109928, 2021-Ohio-694, ¶ 15, citing In re M.S., 8th Dist.
Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 8, citing In re Awkal, 95
Ohio App.3d 309, 315, 642 N.E.2d 424 (8th Dist.1994), citing Lansdowne v. Beacon
Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987). It
“produces in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established.” In re K.S. at ¶ 15, citing In re M.S. at ¶ 18.
Therefore, we examine the record to determine whether the juvenile
court had sufficient evidence to meet the required degree of proof. “Judgments
supported by 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.” In
re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343, at ¶ 24, citing In re T.S.,
8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24, citing State v. Schiebel, 55
Ohio St.3d 71, 74, 564 N.E.2d 54 (1990).
The termination of parental rights is governed by R.C. 2151.414. In re
M.H., 8th Dist. Cuyahoga No. 80620, 2002-Ohio-2968, ¶ 22. R.C. 2151.414 sets
forth a two-part test courts must apply when deciding whether to award permanent
custody to a public services agency.
First Prong: R.C. 2151.414(B)(1)(a)-(e)
Under the first prong, the juvenile court must find by clear and
convincing evidence one of the following five factors:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child’s 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, or the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.
(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
and abused, neglected, or dependent child on three separate occasions
by any court in this state or another state.
R.C. 2151.414(B)(1)(a)-(e).
Only one of the factors must be present for the first prong of the
permanent custody analysis to be satisfied. In re S.S., 8th Dist. Cuyahoga No.
109356, 2020-Ohio-3039, ¶ 28, citing In re L.W., 8th Dist. Cuyahoga No. 104881,
2017-Ohio-657, ¶ 28.
In this matter, the juvenile court determined that the condition set
forth in R.C. 2151.414(B)(1)(d) applied. We note, R.C. 2151.414(B)(1)(d) permits a
public children services agency to move for permanent custody of a child if, at the
time the agency files its permanent custody motion, the child has been in the
agency’s temporary custody for twelve or more months of a consecutive twenty-two-
month period. See In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d
1176, ¶ 26 (construing R.C. 2151.414(B)(1)(d) and explaining that before children
services agency can seek permanent custody under R.C. 2151.414(B)(1)(d), the child
must have been in agency’s temporary custody for at least twelve months before the
agency files a permanent custody motion).
We further note, the time-period for R.C. 2151.414(B)(1)(d) is
calculated from when the child enters custody of the agency and the filing of the
motion for permanent custody. In re J.C., 8th Dist. Cuyahoga No. 106272, 2018-
Ohio-2234, ¶ 29, citing In re C.W., 104 Ohio St.3d 163, 2004-Ohio-6411, 818 N.E.2d
1176, ¶ 26.
The juvenile court’s October 4, 2021, judgment stated in relevant part
that “the child, has been in temporary custody of a public children services agency
or private child placing agency for twelve or more months of a consecutive twenty-
two-month period.” Mother does not dispute the juvenile court’s finding under R.C.
2151.414(B)(1)(d). Indeed, the record established that at the time CCDCFS filed its
motion for permanent custody, on November 30, 2020, G.W. had been in the
agency’s temporary custody for approximately 16 months for purposes of R.C.
2151.414(B)(1). Consequently, the juvenile court’s finding that
R.C. 2151.414(B)(1)(d) applied is clearly and convincingly supported by the record.
We point out, when R.C. 2151.414(B)(1)(d) applies, the trial court is
not required to make any other finding and can immediately proceed to the best-
interest determination. In re L.W., 8th Dist. Cuyahoga No. 107708, 2019-Ohio-1343,
¶ 26, citing In re T.H., 8th Dist. Cuyahoga No. 100852, 2014-Ohio-2985, ¶ 18; J.C.
at id.Because the juvenile court’s finding under R.C. 2151.414(B)(1)(d) is
clearly and convincingly supported by the record, the first prong of the permanent
custody analysis is satisfied in this case.
Second Prong: R.C. 2151.414(D)
The second prong also requires the juvenile court to find by clear and
convincing evidence that granting permanent custody to the agency is in the best
interest of the child. Here, we review a trial court’s best-interest determination
under R.C. 2151.414(D) for an abuse of discretion. In re D.A., 8th Dist. Cuyahoga
No. 95188, 2010-Ohio-5618, ¶ 47. In this regard, ‘“[a] trial court’s failure to base its
decision on a consideration of the best interests of the child constitutes an abuse of
discretion.”’ In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 60. “An
abuse of discretion is more than a mere error of law or judgment; it implies that the
court’s decision was unreasonable, arbitrary, or unconscionable.” Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
In the instant matter, the juvenile court made findings consistent with
granting permanent custody under both R.C. 2151.414(D)(1) and (D)(2), which are
alternative means for reaching the best-interest determination. In re G.A., 8th Dist.
Cuyahoga No. 108932, 2020-Ohio-2949, ¶ 61, citing In re M.K., 10th Dist. Franklin
Nos. 09AP-1141 and 09AP-1142, 2010-Ohio-2194, ¶ 22.
R.C. 2151.414(D)(1) sets forth best-interest factors that the court must
consider when making the best-interest determination under R.C. 2151.414(D)(1),
including
(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 * * *;
(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 * * *;
(d) The child’s need for a legally secure permanent placement and
whether that type of placement can be achieved without a grant of
permanent custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.
The juvenile court has considerable discretion in weighing these
factors. In re D.A. at ¶ 47. Although a trial court is required to consider each relevant
factor under R.C. 2151.414(D)(1) in making a determination regarding permanent
custody, “there is not one element that is given greater weight than the others
pursuant to the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857
N.E.2d 532, ¶ 56. Moreover, “[R.C. 2151.414(D)(1)] requires a weighing of all the
relevant factors * * * [and] requires the court to find the best option for the child
* * *.” Id. at ¶ 64.
In this matter, we begin our inquiry into the second prong by
observing that the juvenile court’s judgment entry reflects that the court expressed
that it considered the factors under R.C. 2151.414(D)(1). The journal entry
continued that “one or more of the factors in division (E) of section 2151.414 of the
Revised Code exist and the child cannot be placed with one of the child’s parents
within a reasonable period of time or should not be placed with either parent.”
Specifically, that
[t]he child is abandoned by her father.
There are relatives of the child who are able to take permanent custody.
Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist parents to remedy the problems that initially caused
the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home.
The parent has demonstrated a lack of commitment toward the child
by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to
provide an adequate permanent home for the child.
The [Mother] has placed the child at substantial risk of harm two or
more times due to alcohol or drug abuse and has rejected treatment two
or more times or refused to participate in further treatment two or
more times after a case plan issued requiring treatment of the parent
was journalized as part of a dispositional order issued with respect to
the child or an order was issued by any other court requiring treatment
of the parent.
The parents are unwilling to provide food, clothing, shelter, and other
basic necessities for the child or to prevent the child from suffering
physical, emotional, or sexual abuse or physical, emotional, or mental
neglect.
The parent has abandoned the child.
The parent has caused or allowed the child to suffer abuse or neglect
makes the child’s placement with the child’s parent a threat to the
child’s safety.
The child has special needs.
As recharacterized, the relevant portions of the journal entry would
correlate to findings under R.C. 2151.414(E)(1)(4)(9)(10)(14) and (16). Additionally,
the trial court determined that all the factors under R.C. 2151.414(D)(2) applied.
R.C. 2151.414(D)(2) states:
If all of the following apply, permanent custody is in the best interest of
the child, and the court shall commit the child to the permanent
custody of a public children services agency or private child placing
agency:
(a) The court determines by clear and convincing evidence that one or
more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to division (D)
of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned permanent
living arrangement pursuant to division (A)(5) of section 2151.353 of
the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of
the child.
Critically, pursuant to R.C. 2151.414(D)(2), if all four factors
enumerated thereunder apply, “permanent custody is in the best interest of the
child, and the court shall commit the child to the permanent custody” of the agency.
(Emphasis added.) A finding under R.C. 2151.414(D)(2) mandates that the trial
court find it is in the child’s best interest to be placed in the agency’s permanent
custody. In re A.S., 8th Dist. Cuyahoga Nos. 110422 and 110472, 2021-Ohio-3829,
¶ 42, citing In re G.A. at ¶ 59.
In these difficult matters, the ultimate welfare of the child remains
the controlling principle to be observed. See In re B.C., 141 Ohio St.3d 55, 2014-
Ohio-4558, 21 N.E.3d 308, ¶ 20, citing In re Cunningham, 59 Ohio St.2d 100, 106,
391 N.E. 2d 1034 (1974).
Based on the foregoing, the juvenile court did not err in granting the
agency’s motion for permanent custody. The decision was not against the manifest
weight of the evidence, was in the best interest of the child, and was supported by
clear and convincing evidence.
Accordingly, we overrule the sole assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant 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
common pleas court, juvenile division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
________________________
EMANUELLA D. GROVES, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, A.J., CONCURS (WITH SEPARATE OPINION)
SEAN C. GALLAGHER, A.J., CONCURRING:
Although I agree with the majority that the judgment of the juvenile
court should be affirmed, I write to further address the statutory framework under
R.C. 2151.414 and the juvenile court’s determination that granting permanent
custody to CCDCFS is in the best interest of the child.
Although it is well established that the right to parent one’s child is a
fundamental right, the government has broad authority to intervene to protect
children from abuse and neglect. In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862
N.E.2d 816, ¶ 28, citing Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147
L.Ed.2d 49 (2000); R.C. 2151.01. Ultimately, the natural rights of a parent are
always subject to the ultimate welfare of the child, which is the controlling principle
to be observed. In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 20,
citing In re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979).
In Ohio, the authority to terminate parental rights is carefully
circumscribed by statute. See In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895
N.E.2d 809, ¶ 41-42. The Supreme Court of Ohio has recognized that “R.C. 2151.414
sets out specific findings a juvenile court must make before granting an agency’s
motion for permanent custody of a child.” In re A.M., 166 Ohio St.3d 127, 2020-
Ohio-5102, 184 N.E.3d 1, ¶ 18, citing In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,
862 N.E.2d 816, ¶ 22. As applicable here, R.C. 2151.414(B)(1) requires a juvenile
court to determine, “by clear and convincing evidence, that it is in the best interest
of the child to grant permanent custody of the child to the agency” and that any of
the conditions set forth in R.C. 2151.414(B)(1)(a) through (e) apply.
In this case, the juvenile court properly found that the child has been
in the temporary custody of the agency for 12 or more months of a consecutive 22-
month period, and it is not disputed that the condition set forth in R.C.
2151.414(B)(1)(d) applies. Therefore, the essential question is whether the trial
court’s best-interest determination is supported by clear and convincing evidence in
the record. See In re K.H. at ¶ 43. To this end, R.C. 2151.414(D)(1) and (D)(2)
provide alternative means for reaching the best-interest determination. In re G.A.,
8th Dist. Cuyahoga No. 108932, 2020-Ohio-2949, ¶ 61, citing In re M.K., 10th Dist.
Franklin No. 09AP-1141, 2010-Ohio-2194, ¶ 22.3
Pursuant to R.C. 2151.414(D)(1), “[i]n determining the best interest of
a child * * *, the court shall consider all relevant factors, including, but not limited
to” the enumerated best-interest factors. “There is not one element that is given
greater weight than the others pursuant to the statute.” In re Schaefer, 111 Ohio
St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56. The statute requires the juvenile
court to weigh all relevant factors and to find the best option for the child. Id. at
¶ 64. In doing so, “R.C. 2151.414(D)(1) does not require a juvenile court to expressly
discuss each of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e).
Consideration is all the statute requires.” In re A.M. at ¶ 31. However, a reviewing
3 “An agency that seeks permanent custody of a child bears the burden of proving
by clear and convincing evidence that the grant of permanent custody is in the child’s best
interest.” In re A.M. at ¶ 19, citing In re B.C. at ¶ 26.
court must be able to discern from the juvenile court’s decision that it “consider[ed]
the enumerated factors,” and a discussion of the best-interest factors is strongly
encouraged to facilitate appellate review. Id. at ¶ 31-32.
Alternatively, pursuant to R.C. 2151.414(D)(2), if all four factors
enumerated thereunder apply, “permanent custody is in the best interest of the
child, and the court shall commit the child to the permanent custody” of the agency.
(Emphasis added.) When all four factors are met, R.C. 2151.414(D)(2) mandates
that the court find it is in the child’s best interest to be placed in the agency’s
permanent custody. In re A.S., 8th Dist. Cuyahoga Nos. 110422 and 110472, 2021-
Ohio-3829, ¶ 42, citing In re G.A. at ¶ 59.
In this case, the juvenile court specifically stated in its judgment entry
that it considered the factors under R.C. 2151.414(D)(1), which are set forth in the
court’s opinion. Although Mother takes issue with the juvenile court’s consideration
of these factors, “[i]n weighing the evidence, the court of appeals must always be
mindful of the presumption in favor of the finder of fact.” Eastley v. Volkman, 132
Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 21. Despite Mother’s claims that
the agency failed to make sufficient efforts to facilitate visitation, to obtain updated
records, and to contact Mother, the record contains evidence showing Mother was
often nonresponsive or unavailable and had inconsistent engagement with, or
disengagement from, her case plan services. Specifically, Mother failed to provide
an updated release of information related to her mental health and substance abuse
treatment — two of her case plan components — and was unresponsive to the agency
worker’s repeated attempts to contact her. Without undermining Mother’s claims
of progress in obtaining stable housing, receiving mental health treatment, and her
sobriety, Mother had been unable to document extended and consistent sobriety
throughout the duration of the case. Valid concerns remained given her lengthy
history of substance abuse. Specifically, Mother self-reported that she had relapsed
approximately seven months prior to the dispositional hearing. Further, even if
Mother could show some period of sobriety through drug screens completed
through the probation department, and even if efforts were made toward
compliance with some aspects of her case plan, the ultimate welfare of the child
remains the controlling principle to be observed. See In re B.C., 141 Ohio St.3d 55,
2014-Ohio-4558, 21 N.E.3d 308, at ¶ 20, citing In re Cunningham, 59 Ohio St.2d
100, at 106, 391 N.E.2d 1034. At the time of the trial, G.W. was placed with a
maternal relative and was receiving trauma-focused therapy and was “thriving” in
this placement. In contrast, at the time of the trial, Mother was living with a relative
and had not secured stable housing suitable for G.W. After spending over two years
in agency custody, G.W. requires permanency and a safe and secure environment.
Notwithstanding the court’s consideration of the best-interest factors
pursuant to R.C. 2151.414(D)(1), because the juvenile court determined that all the
factors under R.C. 2151.414(D)(2) applied, permanent custody was necessarily in the
best interest of the child and the juvenile court was required to grant permanent
custody to the agency. See In re P.J., 8th Dist. Cuyahoga No. 110121, 2021-Ohio-
1821, ¶ 24. As discussed in the majority opinion, the juvenile court made findings
as to each of the R.C. 2151.414(D)(2) factors, and relevant to subsection (D)(2)(a), it
found multiple factors under R.C. 2151.414(E) to exist. The juvenile court’s findings
are supported by clear and convincing evidence in the record, and Mother fails to
demonstrate otherwise. The juvenile court satisfied its statutory duty in this case.
Accordingly, the juvenile court’s decision to grant permanent custody to the agency
must be upheld.