In re D.N.

[Cite as In re D.N., 2020-Ohio-5092.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
In the Matter of: :
D.N. et al., :
No. 19AP-755
(K.C., : (C.P.C. No. 17JU-13991)
Appellant). : (REGULAR CALENDAR)
D E C I S I O N
Rendered on October 29, 2020
On brief: Sybert Road Lackey and Swisher, and Zachary M.
Swisher, for appellant K.C.
On brief: Robert J. McClaren, for appellee Franklin County
Children Services.
APPEAL from the Franklin County Court of Common Pleas,
Division of Domestic Relations, Juvenile Branch
NELSON, J.
{¶ 1} Mother K.C. appeals from the judgment of the Franklin County Court of
Common Pleas, Division of Domestic Relations, Juvenile Branch, granting the motion for
permanent custody of her sons, D.N and D.N., as filed by Franklin County Children
Services. Finding no reversible error, we affirm.
{¶ 2} On April 29, 2017, Mother K.C. and Father D.N. each were charged with two
counts of endangering children under R.C. 2929.22(A). The charges identified as the
victims their minor children, then five-month-old D.N. and two-year-old D.N. FCCS Ex. 1,
Complaints & FCCS Ex. 2, Complaints. All counts alleged that each parent had allowed the
children "to reside in a drug trafficking house, with syringes laying [sic] in the open, little
to no food for [the] children, open access to [the] children by other drug abusers," and that
each parent had been "admittedly a heroin, crack abuser * * * for [the] past six months."
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See id. Each parent entered a plea of guilty to one of the counts in exchange for dismissal of
the second count. FCCS Ex. 1, June 26, 2017 Sentencing Entry, and FCCS Ex. 2, May 9,
2017 Sentencing Entry. K.C. received a sentence of 180 days, with credit for 13 days for
time served and the remaining term suspended. Father D.N. also received a sentence of
180 days, with credit for 11 days and the remainder suspended. Both sentences included
two years of community control.
{¶ 3} On November 11, 2017, FCCS filed a complaint alleging that both children
were abused, neglected, and dependent. After a hearing held on January 19, 2018, a
magistrate found that "the facts as alleged in the complaint [were] uncontested"; the
magistrate adjudicated both children abused under R.C. 2151.031(B), neglected under
2151.03(A)(2), and dependent under 2151.04(C). January 23, 2018 Decision. The trial court
granted temporary custody to FCCS under R.C. 2151.353(A)(2) and adopted the agency's
case plan as an order of the court. Id.{¶ 4} On May 4, 2018, FCCS filed its motion for permanent custody under R.C.
2151.413. The motion was amended and refiled on October 30, 2018. Neither parent
appeared at trial. See, e.g., July 11, 2019 Tr. at 4-5. K.C.'s lawyer had not been able to
contact her since January 4, 2019, despite having sent numerous letters and "made several
phones calls that she did not answer." Id. at 7.
{¶ 5} Rachel Marcum, an FCCS caseworker, testified that she had been assigned to
the case on June 16, 2017. Id. at 13. By the time of trial, the children were two and four
years old and had been in a foster home for over two years. Id. at 20-21. Ms. Marcum had
formulated the case plan for reunification and had reviewed it "five times" with K.C. and
"[a]bout ten times" with father D.N. Id. at 20, 24-26. She testified that the case plan
required K.C. to "complete a mental health and an alcohol and drug assessment and follow
through with recommendations from the assessments, complete parenting classes,
complete random urine screens, meet with linked providers and actively participate, sign
releases of information for open communication between collaterals, keep [FCCS] updated
with her address and maintain appointments with [FCCS] and obtain and maintain stable
housing." Id. at 28. The case plan also included "a visitation plan" with the children. Id.
{¶ 6} According to Ms. Marcum, K.C. completed a drug and alcohol assessment in
November of 2018. Id. at 31. That assessment resulted in K.C. receiving a referral "for
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intensive outpatient therapy three times a week, group sessions in addition to three times
a week, individual sessions with a therapist, and continue[d] NA or AA meetings." Id.
Ms. Marcum averred that K.C. had not provided "any documentation that she completed
the recommended treatment" or attended the NA or AA meetings. Id. at 34. Ms. Marcum
spoke with K.C. "five times" about missed drug testing appointments, and twice gave her
bus passes to assist with transportation. Id. at 36, 37. She also gave K.C. information on
parenting classes, and K.C. provided her with "proof that she attended and completed a
parenting class" in February 2019. Id. at 39.
{¶ 7} Ms. Marcum was aware of three different places where K.C. had resided
during the pendency of the case. Id. at 40. Ms. Marcum's last successful attempt at visiting
K.C. before testifying on July 11, 2019 had been on February 26, 2019. Ms. Marcum stated
that she had "some concerns" about K.C.'s residence, which had "a very strong stench" that
was "not a pet smell. I would be concerned with the sanitation [conditions] of the home.
Additionally, the bedrooms [for the children were] full of stuff," such as "[f]urniture [and]
boxes." Id. at 53. Subsequent attempts at reaching K.C. by "calling her over the phone"
were not successful because K.C. did not return calls; nor was Ms. Marcum able to
"personally complete three unannounced visits to her home per month," as no one would
answer the door. Id. at 42-44.
{¶ 8} Ms. Marcum testified that the first visitation with the boys after the children
came into FCCS custody in June of 2017, K.C.'s was not until October of 2018—more than
a year later. "Her visits were then suspended in April [2019]. Her last visit with the boys
was March 31st of 2019." Id. at 46-47. K.C. did not visit with the children between then
and Ms. Marcum's July 11, 2019 testimony. Id. at 47.
{¶ 9} Ms. Marcum described the children as "both very bonded with [the] foster
parents." Id. at 48. The children seek the foster parents "for comfort when they're hurt or
need help with something or they're hungry." Id. at 48-49. She agreed that "the current
foster home is a prospective adoptive home" for the boys, and she recommended that the
court grant the motion for permanent custody. Id. at 49.
{¶ 10} Jessika Gualtieri testified that she was appointed as the children's guardian
ad litem in July of 2017. Id. at 74. She described the interaction between K.C. and the
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children as "friendly and positive," although "the younger child was a little less engaged"
and did not appear to understand that K.C. was his mother. Id. at 77.
{¶ 11} Ms. Gualtieri also described visits between father D.N. and the children as
"positive and friendly. He was very physically engaged with them." Id. at 78. She described
the children's interaction with the foster parents as "very positive. They are very warm; very
nurturing. They're very appropriate with redirection." Id. When asked to describe the
"difference" between the children's interaction with their biological parents and their
interaction with the foster parents, Ms. Gualtieri stated that "there is a friendly relationship
with their parents, but it's not the kind of bond that they have with their foster parents. * * *
[T]hat's their home, that's their comfort; that's where they feel safe and secure." Id. at 79.
In Ms. Gualtieri's opinion, the children were not competent to understand the permanent
custody proceedings or to express their wishes. Id. at 80. She recommended granting the
motion for permanent custody. Id.
{¶ 12} The trial court continued the proceedings so that the guardian ad litem could
further observe the children and allow the parents to "request and attend visitations" if they
desired. Id. at 89. Again at the subsequent proceeding, neither K.C. nor father D.N.
appeared. September 17, 2019 Tr. at 5. Father D.N.'s lawyer informed the trial court that
he was no longer "opposing the PCC of his children and therefore [the motion was] now
uncontested" by him. Id.
{¶ 13} Ms. Gualtieri testified again and stated that she had spoken with the children
about "their wishes," but that "it was extremely difficult" because "they don't understand"
the situation or "living somewhere else." Id. at 9. The younger child "was not able to
communicate very well with [her]," and the older child was "very happy where he is and
wants to spend the night there, to continue to spend the night there." Id. at 10. She was
concerned that asking the older boy "where he wants to live might cause him additional
insecurity because he's very happy where he is." Id. at 10-11. Although the trial court had
intended to question the children in camera regarding their wishes, it accepted
Ms. Gualtieri's recommendation against such an interview because "not only would it be
fruitless, [but] might be harmful." Id. at 11. The trial court noted that "the foster parent
attempted to bring [the older boy] in for the interview and he was crying and appeared to
be visibly upset." Id. at 14. Ms. Gualtieri maintained her recommendation in favor of
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granting the motion for permanent custody. Id. at 16. She also stated that she had "reached
out" to K.C., but that K.C. did not respond to any of her text messages. Id. at 16-17.
{¶ 14} On October 4, 2019, the trial court entered judgment granting the motion,
committing both children to the permanent custody of FCCS, and divesting K.C. and father
D.N. of their parental rights. Judgment Entry at 16.
{¶ 15} K.C. has appealed and asserts one assignment of error:
The trial court committed reversible error by terminating the
appellant-mother's parental rights when the court failed to
properly analyze the factors in R.C. 2151.414(D) and the
decision was against the manifest weight of the evidence.
{¶ 16} "A trial court's determination in a permanent custody case will not be
reversed on appeal unless it is against the manifest weight of the evidence." In re K.L., 10th
Dist. No. 13AP-218, 2013-Ohio-3499, ¶ 13, citing In re Andy-Jones, 10th Dist. No. 03AP-
1167, 2004-Ohio-3312. The reviewing court "must make every reasonable presumption in
favor of the judgment and the trial court's findings of facts." In re K.M., 10th Dist. No. 15AP-
64, 2015-Ohio-4682, ¶ 13.
{¶ 17} R.C. 2151.414 governs resolution of an agency's motion for permanent
custody. "Before granting permanent custody, a trial court must make two determinations
by clear and convincing evidence." In re C.W., 10th Dist. No. 19AP-309, 2020-Ohio-1248,
¶ 54. First, the trial court must determine whether one of the five factors under R.C.
2151.414(B)(1) applies. Here, the trial court concluded that "[c]lear and convincing evidence
established" that "[t]he Parents have abandoned the Children" under R.C.
2151.414(B)(1)(b), and, "[a]dditionally," under R.C. 2151.414(B)(1)(a), that "the Children
[could not] be placed with either of the Parents within a reasonable period of time or should
not be placed with the Parents for the reasons set forth in R.C. 2151.414(E)(1), (2), (4), (6),
and (10)." Judgment Entry at 13. Here, those reasons were that "the Parents [had] failed
continuously and repeatedly to substantially remedy the conditions causing the Children to
be placed outside their home"; the parents had not complied with case plan requirements
to "participate in AOD counseling, attend AA/NA meetings" to address their drug abuse
that had "resulted in Child Endangerment"; the parents "lack[ed] commitment toward the
Children," as demonstrated "by failing to regularly visit or communicate with the Children";
the children had been victims of the parents' convictions for child endangerment under R.C.
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2919.22(A); and "[t]he Mother and Father abandoned the Children." Id. at 13-14. K.C.'s
appeal does not contest these findings of the trial court on appeal.
{¶ 18} Rather, her appeal challenges the second part of the R.C. 2151.414(B)(1)
analysis, which requires that the trial court 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 that filed the motion for permanent custody." This determination requires
consideration of various "relevant factors" under R.C. 2151.414(D)(1), to the extent
applicable: "(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 * * *; (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; [and] (e) Whether any of the
factors in divisions (E)(7) to (11) of [R.C. 2151.414] apply in relation to the parents and
child."
{¶ 19} K.C. argues that "[t]he Court's flawed analysis of the best interest factors
resulted in a PCC ruling that was against the manifest weight of the evidence." Appellant's
Brief at 19. She first criticizes the trial court's findings under R.C. 2151.414(D)(1)(a)
concerning "[t]he 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." We disagree with her characterization of the trial court's
findings as "discount[ing] the narrow difference between the relationship between the
foster parents and the Children as opposed to the relationship between Appellant and her
children." Appellant's Brief at 19. The trial court stated that "[t]he [guardian ad litem]
opined that the parent/child and the foster parent/child interactions differed in that the
interactions between the Children and Parents were friendly but did not evidence a bond,
while the interactions between the Children and foster parents evidenced a significant
bond." Judgment Entry at 14. The trial court acknowledged that "the visitation between
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Mother and the Children was friendly and positive," but emphasized the more substantial
bond between the children and the foster parents in its assessment of the "interaction and
interrelationships" of all parties under R.C. 2151.414(D)(1)(a).
{¶ 20} K.C. argues that the children's bond with the foster parents was stronger than
hers "due to the sheer amount of time" that the children have been with the foster parents,
and that this placement occurred not only because of her own "actions" but because "the
financial issues of the other family members" made them unable to serve as foster parents:
"Appellant and her family are poor and for this she may lose her children." Appellant's
Brief at 20. But appellant's financial status played no part in the trial court's assessment of
the "interaction and interrelationships" of the children with their parents or foster parents
under R.C. 2151.414(D)(1)(a). The trial court noted that the "maternal grandmother
withdrew her motion for custody," that the "[p]aternal grandmother had a criminal record
concerning to the Agency," and that no friends had applied (citing financial constraints).
Judgment Entry at 13. The manifest weight of the evidence supported the trial court's
assessment of the bond between the children and their foster parents, and the lack of a
similar bond between the children and K.C. and father D.N. Speculation about hypothetical
circumstances does not undermine the trial court's finding regarding the bonds between
the children and the foster parents.
{¶ 21} K.C. also faults the trial court's findings under R.C. 2151.414(D)(1)(b)
concerning "[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." She believes that
the trial court "essentially made no findings on this factor other than the fact that the
Children were not competent to testify and the [guardian ad litem] had a belief that the
Children did not understand the concept of living somewhere other than with the foster
family." Appellant's Brief at 20. She also faults the trial court for "not interview[ing] the
Children in camera over the objection of Appellant's trial counsel." Id.
{¶ 22} We find no error in the trial court's reliance on the testimony of the guardian
ad litem. "The juvenile court properly considers the GAL's recommendation on the
permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the
children are too young to express their wishes." In re B/K Children, 1st Dist. No. C-190681,
2020-Ohio-1095, ¶ 45, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, ¶ 60.
No. 19AP-755 8
The trial court relied on the guardian ad litem's assessment that "the Children were not
competent to express their wishes and did not understand the concept of permanent
custody or of 'living somewhere else' other than in their foster home." Judgment Entry at
14. In addition, the trial court had "due regard for the maturity of the child[ren]" when it
decided, on the recommendation of the guardian ad litem and its own observation of the
older boy "clinging on to his foster mother" and "crying" as "he appeared to be frightened
by the setting," not "to attempt an in camera interview [of] either of the Children so as to
avoid the risk of traumatizing the Children." Judgment Entry at 7. The trial court also
continued the initial proceedings and instructed the guardian ad litem to perform
additional observation concerning the children's wishes "and to file an updated report,"
evidencing an intent that the guardian ad litem have more information before testifying
about her recommendation. Id. at 7. Under the circumstances of this case, the trial court
did not misuse the guardian ad litem's testimony. See, e.g., In re K.J., 10th Dist. No. 19AP-
727, 2020-Ohio-4391, ¶ 20 ("Because K.J. 'was not able to comprehend the situation nor
able to express her wishes,' the trial court properly relied on K.J.'s guardian ad litem in
making its findings under R.C. 2151.414(D)(1)(b)").
{¶ 23} K.C. also faults the trial court's finding under R.C. 2151.414(D)(1)(c), which
concerns "[t]he 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 * * *." In
discussing this factor, the trial court merely stated that the children "have lived in their
foster home since June 6, 2017." Judgment Entry at 14. Although this statement is cursory,
K.C. does not argue that it is inaccurate. She asserts that if the trial court had "fully reviewed
the custodial history, the court would have weighed this factor in favor of the Appellant."
Appellant's Brief at 22. But she cites no portion of the record where the children's custodial
history with her weighs in her favor. Without belaboring that history, see supra at ¶ 2, we
merely note that it does not.
{¶ 24} In addressing "[t]he child's need for a legally secure placement and whether
that type of placement can be achieved without a grant of permanent custody to the
agency," as required by R.C. 2151.414(D)(1)(d), the trial court stated: "The GAL opined that
[the older child] is very insecure. The Court concludes that adoption may provide [him] a
No. 19AP-755 9
greater sense of security[,] and uprooting the Children from the only home they remember
would likely have a negative effect on the Children. Both the Caseworker and the GAL
recommended that the motion for permanent custody be granted. The foster parents are
open to adoption of [the children] should they be given the opportunity to adopt."
{¶ 25} K.C. argues that the trial court's analysis is erroneous because it "goes no
further" than mentioning the recommendations of the guardian ad litem and the
caseworker, and does "not address at all the adequacy of the mother's home." Appellant's
Brief at 23. But the trial court emphasized the enhanced sense of security that placement
and eventual adoption could provide. And the trial court made numerous findings
concerning both parents' failure to comply with the case plan requirements. See Judgment
Entry at 11-12. By contrast, the record does not reflect that legally secure placement could
be achieved without a grant of permanent custody to FCCS.
{¶ 26} Finally, K.C. argues that the trial court's analysis under R.C. 2151.414(D)(1)(e)
was flawed. The statute asks the trial court to consider "[w]hether any of the factors in
divisions (E)(7) to (11) of this section apply in relation to the parents and child." The trial
court stated: "No evidence was offered as to the best interest factors listed in divisions (E)(7)
to (11) of R.C. 2151.414." Judgment Entry at 14.
{¶ 27} R.C. 2151.414(D)(1) recites that "the court shall consider all relevant factors,
including * * * [w]hether any of the factors in divisions (E)(7) to (11) of this section apply in
relation to the parents and child." "Due to the nature of the factors set forth in R.C.
2151.414(E)(7) to (11), they will not apply in every case." In re L.W., 10th Dist. No. 17AP-
586, 2018-Ohio-2099, ¶ 32. We have "previously affirmed decisions holding an award of
permanent custody to an agency to be in a child's best interest without explicit
consideration of those factors where they did not apply, or decisions where the juvenile
court only considered certain of the R.C. 2151.414(E)(7) to (11) factors that were applicable
to the particular case." Id. (citations omitted). K.C. does not point to any applicable factors
that went unaddressed by the trial court. We do note that the trial court elsewhere made a
finding under R.C. 2151.414(E)(10) that the parents had abandoned the children.
Judgment Entry at 14. But the trial court's omission of a finding of abandonment of the
children from this portion of the best interest analysis in no way prejudiced K.C. We find
No. 19AP-755 10
no error in the trial court's weighing of the evidence under R.C. 2151.414(D)(1) in
determining the best interest of the children.
{¶ 28} We overrule the sole assignment of error and affirm the judgment of the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch.
Judgment affirmed.
KLATT and DORRIAN, JJ., concur.
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