In re V.M.

[Cite as In re V.M., 2018-Ohio-4974.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
IN RE V.M. : Case No. 18CA15
D.M. :
N.M. : DECISION AND JUDGMENT
: ENTRY
Adjudicated Dependent Children : Released: 12/04/18
APPEARANCES:
James A. Anzelmo, Gahanna, Ohio, for Appellant.
Timothy L. Warren, Athens, Ohio, for Appellee.
McFarland, J.
{¶1} Appellant, the children’s maternal grandmother, appeals the trial
court’s judgment that granted Appellee, Athens County Children Services
(ACCS), permanent custody of nine-year-old V.M., seven-year-old D.M.,
and five-year-old N.M. Appellant raises the following arguments: (1) the
trial court plainly erred by allowing the children’s guardian ad litem to
testify; (2) the court incorrectly concluded that it did not need to make
another reasonable-efforts finding before granting Appellee permanent
custody; and (3) the court’s decision is against the manifest weight of the
evidence. None of Appellant’s arguments have merit. Accordingly, we
overrule appellant’s three assignments of error and affirm the trial court’s
judgment.
Athens App. No. 18CA15 2
I. FACTS
{¶2} The three children have lived with Appellant for most of their
lives. Their mother and respective fathers largely abdicated responsibility
for the children. V.M.’s father maintained contact with her, but V.M. never
lived with her father. None of the biological parents are involved in this
appeal.
{¶3} Appellant tried to maintain the children in a safe and stable
environment, but Appellant allowed the children’s mother and the mother’s
boyfriend to frequently disrupt the children’s lives. Additionally,
Appellant’s adult son lived in the home, and he was not a positive presence
in the children’s lives. He reportedly was violent with the children and had
once attempted suicide.
{¶4} Appellant developed her own issues and caring for the children
became problematic. In late 2016, Appellant reported to Appellee that “she
was at her wit’s end and needed respite for the children.” Appellant later
overdosed on her blood pressure medication.
{¶5} Appellee subsequently filed complaints alleging that the
children are neglected and dependent children. The complaint alleged the
following: (1) the children had been living with Appellant; (2) Appellant
reported that she is not certain whether she can continue to keep the children
Athens App. No. 18CA15 3
safe, that she does not have electricity, and that she lacks funds to buy food
for the children; (3) then eight-year-old V.M. and six-year-old D.M.
reportedly had engaged in sexual intercourse; (4) the children have
witnessed their mother and the mother’s boyfriend, as well as the children’s
uncle and his girlfriend, engaging in sex; (5) Appellant stated “she is about
to have a breakdown with everything going on;” and (6) D.M. indicated that
he “has N.M., age 4, and V.M. ‘suck on his wiener.’ ”
{¶6} On February 22, 2017, the court adjudicated the children
dependent and dismissed the neglect allegations. Nine months later,
Appellee filed motions for permanent custody. Appellee alleged that the
children cannot be placed with either parent within a reasonable time or
should not be placed with either parent and that placing the children in
Appellee’s permanent custody is in their best interests.
{¶7} At the permanent custody hearing, Nickie Webb, the children’s
mental health counselor, testified that she counseled V.M. and D.M. for
approximately two and one-half years and that she counseled N.M. for
approximately one year. When Ms. Webb first engaged with D.M., he was
hyperactive and displayed poor social skills. Ms. Webb explained that D.M.
often urinated on the floor or on himself. She indicated that D.M. became
more aggressive throughout her counseling and that she learned he had
Athens App. No. 18CA15 4
harmed or killed animals: he used bug spray to kill frogs; chopped up a pet
snake with a knife; and picked up a dog at Appellant’s house, dropped it,
and broke its leg.
{¶8} Ms. Webb stated that she worked with Appellant to integrate
therapy into D.M.’s daily life. She attempted to teach appellant skills for
working with oppositional, defiant, and ADHD-like behaviors. However,
Appellant missed or canceled several appointments, so they “had trouble
getting into a pattern.”
{¶9} Ms. Webb explained that in late 2016, when D.M. entered
Appellee’s temporary custody, “[h]is behaviors settled quite a bit” and she
achieved a “baseline” with him. She stated that she worked to improve
D.M.’s social skills, as well as his ability to recognize appropriate
boundaries in his interactions with his siblings and others. Ms. Webb
testified that in order to have the greatest opportunity for a successful
outcome, D.M. needs a structured environment and continued counseling.
{¶10} Ms. Webb explained that when she first encountered V.M.,
V.M. had “a lot of trouble lying,” she was behind in school, and she was
aggressive with her siblings. Ms. Webb stated that V.M.’s issues stemmed
from her desire for consistency from her biological parents and that V.M.
needs consistency and discipline. Ms. Webb further indicated that V.M. has
Athens App. No. 18CA15 5
expressed a desire to live with Appellant. Ms. Webb noted that because
V.M. has lived with Appellant for most of her life, V.M. is bonded with
Appellant and would be upset if she did not see Appellant anymore.
{¶11} Ms. Webb testified that she began counseling N.M. around the
time that N.M. entered Appellee’s temporary custody. She related that N.M.
was having tantrums, was hyperactive, and lied. Ms. Webb further noted
that N.M. appeared to be developmentally delayed. She explained that
V.M.’s speech was difficult to understand. Ms. Webb believes that N.M.
needs a high level of supervision and a consistent environment.
{¶12} D.M.’s foster mother testified that D.M. has lived in her home
for just over one year. She stated that when D.M. first entered her home, his
behavior “was pretty rough.” The foster mother explained that D.M. had
angry outbursts, hit other children, did not follow directions, and hoarded
food. She further related that D.M. did not urinate or defecate in the toilet.
Instead, “[h]e was urinating on everything.”
{¶13} The foster mother stated that although D.M.’s behaviors have
improved, he still needs constant supervision. She believes that the
consistent structure and routine her home provides has benefitted D.M.
{¶14} V.M. and N.M.’s foster mother testified that the girls have
lived with her since they entered Appellee’s temporary custody. She stated
Athens App. No. 18CA15 6
that when N.M. entered her home, N.M. “was mostly nonverbal” and
explained that N.M. “either barked or she made monkey noises, or other
animal sounds” to communicate. The foster mother found N.M. to have
“very limited” vocabulary for a four-year-old. Additionally, N.M. did not
readily comprehend the words spoken to her. The foster mother testified
that although N.M.’s speech has improved since entering her home, N.M.
requires constant supervision.
{¶15} The foster mother testified that when V.M. entered the home,
V.M. “literally [threw] 12 hour temper tantrums.” V.M. would “scream,
kick things, holler, * * * slam doors, [and] jump on her bed.” The foster
mother stated that V.M. now experiences “2 to 4” hour tantrums, and only
when she is unable to attend a visit with Appellant.
{¶16} The foster mother explained that although N.M. and V.M.
struggle to get along, V.M. would not mind living in Appellant’s home with
N.M. The foster mother further related that V.M. does not want to live with
D.M.
{¶17} Appellant testified that before Appellee removed the children
from her home, she had served as their legal custodian. Appellant explained
that V.M. lived with her throughout most of her life, that D.M. lived with her
since he was approximately three years of age, and that N.M. lived with her
Athens App. No. 18CA15 7
since she was about one year old. Appellant stated that she took custody of
the children because the children’s mother “was going down the road of
drugs” and “did not properly supervise the children.”
{¶18} Appellant related that she allowed the children’s mother to stay
at Appellant’s home when needed. She also indicated that the mother and
the mother’s boyfriend have been involved in some domestic violence
incidents in the home when the children when present.
{¶19} Appellant stated that the past summer, the children’s mother
“went with the carnival.” When the children’s mother returned from the
carnival, Appellant told the mother that she could not live at her home.
Appellant indicated that since time, the mother has been living with her
boyfriend’s parents.
{¶20} Appellant testified that she recently divorced from her husband
and moved out of the residence where she and the children had lived.
Appellant stated that the former residence needed a lot of repairs and was
not suitable for the children. Appellant explained that she recently obtained
a two-bedroom apartment that would be sufficient to house the two girls but
not D.M.
{¶21} Appellant reported that she has been diagnosed with bipolar
disorder, anxiety, and depression and that sees a counselor once per week.
Athens App. No. 18CA15 8
Appellant admitted that when the children were in her care, she did not
prioritize their needs and described her care of the children as “pretty shitty.”
She believes that if the court returns the children to her custody, she will do
better: “I’ve woken up and I noticed that I have to change in order to give
them a better life.”
{¶22} ACCS Caseworker Tara Carsey testified that she has worked
with the family since late 2016 and that the children have remained in
Appellee’s temporary custody since that time. Ms. Carsey explained that
when Appellee removed the children from the home, they had been in
Appellant’s legal custody. Ms. Carsey stated that Appellee’s concerns
included a lack of supervision and stability, as well as Appellant’s mental
health.
{¶23} Ms. Carsey averred that she worked with Appellant to improve
her supervision of the children and that she encouraged Appellant to provide
the children with more consistency in their lives. She explained that when
the children lived with Appellant, Appellant had permitted the children’s
mother and her boyfriend in and out of the home, which created instability
for the children. Ms. Carsey additionally related that Appellee had concerns
about Appellant’s adult son who lived in the home. Ms. Carsey indicated
Athens App. No. 18CA15 9
that the son allegedly had some mental health issues and had attempted
suicide.
{¶24} Ms. Carsey testified that when the children were in the
agency’s temporary custody, Appellant attended most of her visits with the
children. Ms. Carsey stated that they attempted off-site visitations but later
returned them to on-site visits due to Appellant’s inability to properly
supervise the children. She indicated that during the off-site visits, the
children “just seemed kind of wild and [Appellant] didn’t have the ability to
rein them back in.” Rather, “[i]t was more like trying to herd cats.”
{¶25} Ms. Carsey explained that the children “have a lot of
behaviors” and “issues of their own” that Appellant could not always
control. She also related that the children had not been receiving “the proper
and necessary treatment that they needed when they were in [Appellant’s]
care.”
{¶26} Ms. Carsey does not believe that Appellant can safely maintain
and supervise all of the children in the home. She does not believe
Appellant “is able to provide enough of a structured environment to maintain
their issues and behaviors.” Ms. Carsey recognized that Appellant claimed
that Appellant’s mother could help with the children, but Ms. Carsey does
not “know how much [appellant’s] mom is able to help.”
Athens App. No. 18CA15 10
{¶27} Ms. Carsey further explained that Appellant has mental health
issues that she must continue to address. Additionally, Appellant does not
“have a lot of supports” and does not have transportation. Ms. Carsey noted
that Appellant recently obtained her own apartment, but she believes that
Appellant’s inability to control the children during the short-term off-site
visitations documented that Appellant could not provide the children with
the high level of supervision that they need.
{¶28} The children’s guardian ad litem testified and explained that
her “opinion has sort of evolved since [she] wrote [her] report.” She
explained:
Things have changed. [Appellant] has gotten housing just very
recently. These are very high needs children. They need a lot of
discipline. They need structure in their lives and I believe that there
might be a possibility that [appellant] could maybe have one, have
[V.M.] because [V.M.] is older and takes care of herself, but I believe
that [D.M.] and [N.M.] are * * * such high needs and it would be very
difficult for her to have all three. So, I believe it would be definitely
in the best interests of [N.M.] and [D.M.] to be placed [in Appellee’s
permanent custody].”
{¶29} The guardian ad litem stated that when she prepared her
written report, Appellant had been living at the former residence, “which
was not appropriate for children at all.” The guardian ad litem explained
that since she prepared her written report, Appellant had obtained an
apartment. The guardian ad litem related that she had not had a chance to
Athens App. No. 18CA15 11
visit the residence, so she is “just leaving a possibility open” that V.M. could
be placed with Appellant. She further indicated, however, that the children
need “a resolution as soon as possible.”
{¶30} The guardian ad litem explained that all three children “love
[Appellant] very much and she loves them.” The guardian ad litem related
that the evening before the hearing, the guardian ad litem asked the children
if they wanted her to convey any words to the judge. D.M. “popped up and
he said, * * * ‘I want to go back with Mimi.’ ” V.M. stated, “ ‘I want that
too.’ ” N.M. stated, “ ‘me too.’ ” The guardian noted that although the
children want to return to Appellant, she believes that it is in the children’s
best interests to have “more structure than what [Appellant] can provide.”
She believes V.M. “might be able to survive” in Appellant’s care, but “[n]ot
necessarily thrive.” However, the guardian ultimately concluded that
placing her in Appellee’s permanent custody is in her best interests.
{¶31} On May 1, 2018, the trial court granted Appellee permanent
custody of the children. The court found that the children could not be
placed with any of the biological parents or with Appellant. The court noted
that the mother ran off and joined the carnival, D.M.’s and N.M.’s fathers
have abandoned them, and V.M.’s father moved to Georgia as V.M. was
being placed in Appellee’s temporary custody. Moreover, V.M.’s father
Athens App. No. 18CA15 12
tested positive for cocaine the last time he visited Ohio, and his contact with
“V.M. has been minimal, sporadic, and hurtful.”
{¶32} The court noted that Appellant “tried to apply herself to the
case plan, and tried to demonstrate that she could somehow assemble all the
parts necessary to even attempt trial visits.” However, the court concluded
that Appellant nonetheless “failed.” The court found that Appellant’s “life is
a fragile one, and has required multiple, substantial supports from various
social service agencies.”
{¶33} The court also determined that the children have special needs.
The court noted that when N.M. entered foster care at four years of age, “she
was essentially nonverbal” and communicated through “grunting and animal
noises.” D.M.’s counselor stated that he “should never be left alone with
children or animals.” V.M. “engages in elaborate lies, steals, and is
physically aggressive with the younger siblings.” The court did not believe
Appellant possesses the capacity to provide for the children’s special needs.
{¶34} The court found that the chaos the children have experienced
throughout their lives will cause “each [to] face significant challenges
adapting to reasonable expectations of behaviors in all aspects of their
lives.” The court determined that the children “each have special needs that
Athens App. No. 18CA15 13
can only be successfully addressed if they have a structured consistent home
life as the foundation for their growth.”
{¶35} Therefore, the court found that the children could not be placed
with any of the parents or with Appellant within a reasonable time or should
not be placed with the parents or Appellant.
{¶36} The court additionally found that placing the children in
Appellee’s permanent custody was in their best interests. The court
considered the children’s interactions and interrelationships and explained as
follows:
V.M. (now nine years old), and N.M. (now 5), are sisters and
share the same foster family since removal. D.M. is a seven year old
boy who has been with a different foster family since removal (at the
same time as his sisters). Only V.M. has any sense of relationship
with [her] father. Others’ interactions with the children throughout
the fifteen months of this case have been sporadic and disruptive.
Maternal grandmother has probably been as constant as she is capable
of, given her own life issues, and at least deserves credit for wanting
things to be better for these children. She and the children enjoy their
visits, and the Court’s decision to terminate parental rights will
certainly mean additional trauma and distress to these four.
V.M. and N.M. are bonded, or at least bonding, and learning
child-appropriate relationships in a family setting. D.M. is able to
visit with his sisters without significant incidents, but the prospects of
unifying the children for adoption are not only doubtful, but perhaps
ill advised. Neither foster family has expressed interest in adoption.
{¶37} The court next examined the children’s wishes:
Only V.M. has enough maturity to have her expressed desires
considered herein. She has said she wants to return to maternal
grandmother, but she has also stated she’d like to live with the man
Athens App. No. 18CA15 14
who used to be married to maternal grandmother. D.M. and N.M. are
more likely to chime in with a ‘me too’ comment when the subject is
brought up. Given the complexities of the children’s identified
personal issues, and their inability to comprehend the significance of
the decisions and events that bring us to this point, their expressed
wishes carry little weight in this case.
{¶38} The court additionally reviewed the children’s custodial
history. The court noted that V.M. has lived with Appellant since shortly
after V.M.’s birth and that the other two children lived with Appellant since
shortly after N.M.’s birth. The children’s mother and the mother’s “various
boyfriends moved in and out of [Appellant]’s home throughout [the
children’s] lives, all with [Appellant]’s consent, or at least lack of protest.”
The court noted that although the children technically have not been in
Appellee’s temporary custody for twelve or more months of a consecutive
twenty-two month period, the children were removed in December 2016 and
have remained in the same foster homes throughout the case.
{¶39} The court next evaluated the children’s need for a legally
secure permanent placement. The court found: “The children need and
deserve legally secure placements, and ideally adoptions which can only be
achieved with a grant of permanent custody to ACCS.”
{¶40} The court additionally determined that R.C. 2151.414(E)(10)
applies—the mother and D.M.’s and N.M.’s fathers abandoned the children.
Athens App. No. 18CA15 15
{¶41} The court further found that Appellee “already established that
reasonable efforts at reunification have been made prior to the hearing on the
instant motion for permanent custody” and that the court need not make
another reasonable efforts finding.
{¶42} The court thus placed the children in Appellee’s permanent
custody.
II. ASSIGNMENT OF ERROR
{¶43} Appellant timely appealed and raises three assignments of
error:
First Assignment of Error:
“The trial court plainly erred by admitting the testimony of the
guardian ad litem.”
Second Assignment of Error:
“The trial court erred by concluding that it was not required to
determine whether children services satisfied a duty to take reasonable
efforts to reunify V.M., D.M., and N.M. with their family.
Third Assignment of Error:
“Children services failed to establish, by clear and convincing
evidence, that it should be given permanent custody of V.M., D.M.,
and N.M.”
III. LEGAL ANALYSIS
A.
Athens App. No. 18CA15 16
Guardian Ad Litem’s Testimony
{¶44} In her first assignment of error, Appellant contends that the
trial court plainly erred by admitting the guardian ad litem’s testimony
regarding the children’s best interests when the guardian ad litem had not
viewed Appellant’s current living environment.
{¶44} As Appellant notes, she did not object to the guardian ad
litem’s testimony during the permanent custody hearing and therefore
forfeited all but plain error on appeal. E.g., State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15; State v. Clinkscale, 122
Ohio St.3d 351, 2009–Ohio–2746, 911 N.E.2d 862, ¶ 31; Stores Realty Co.
v. City of Cleveland, Bd. of Bldg. Standards and Bldg. Appeals, 41 Ohio
St.2d 41, 43, 322 N.E.2d 629 (1975) (“Ordinarily, errors which arise during
the course of a trial, which are not brought to the attention of the court by
objection or otherwise, are waived and may not be raised upon appeal.”).
To find plain error, (1) there must be an error (i.e., a deviation from a legal
rule), (2) the error must be obvious, and (3) the error must have affected the
outcome of the trial. E.g., State v. Payne, 114 Ohio St.3d 502, 2007–Ohio–
4642, 873 N.E.2d 306, ¶ 16. Furthermore, “[i]n appeals of civil cases, the
plain error doctrine is not favored and may be applied only in the extremely
rare case involving exceptional circumstances where error, to which no
Athens App. No. 18CA15 17
objection was made at the trial court, seriously affects the basic fairness,
integrity, or public reputation of the judicial process, thereby challenging the
legitimacy of the underlying judicial process itself.” Goldfuss v. Davidson,
79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus. Moreover, plain error
does not exist unless the court’s obvious deviation from a legal rule affected
the outcome of the proceeding. E.g., State v. Barnes, 94 Ohio St.3d 21, 27,
759 N.E.2d 1240 (2002).
{¶45} In the case at bar, as we explain below, we do not believe that
the trial court plainly erred by admitting the guardian ad litem’s testimony.
{¶46} A guardian ad litem’s function in a juvenile proceeding is “to
provide the court with relevant information and an informed
recommendation regarding the child’s best interest.” Sup.R. 48(D); accord
In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14.
“[T]he guardian’s role is to ‘perform whatever functions are necessary to
protect the best interest of the child, including, but not limited to * * *
monitoring the services provided the child by the public children services
agency * * * [and filing] any motions and other court papers that are in the
best interest of the child.’ ” C.B at ¶ 14, quoting R.C. 2151.281(I). A
guardian ad litem’s general duties include investigating the background of
the parents and delivering a report and recommendation to the court
Athens App. No. 18CA15 18
regarding the child’s best interests. In re C.D.M., 4th Dist. Hocking No.
13CA1, 2013-Ohio-3792, 2013 WL 4734804, ¶ 25.
{¶47} In the case at bar, Appellant asserts that the guardian ad litem
based her recommendation on outdated information regarding Appellant’s
living situation and, thus, that the guardian ad litem did not base her
recommendation on relevant information. We do not believe that the trial
court made an obvious error by admitting the guardian ad litem’s testimony.
The guardian ad litem fully explained the basis of her recommendation and
noted that Appellant recently obtained a new residence. The guardian thus
cautioned that her recommendation did not take into account Appellant’s
newly-obtained residence. Additionally, Appellant’s counsel cross-
examined the guardian ad litem and made the court well-aware that the
guardian ad litem had not yet visited Appellant’s new residence. Therefore,
we believe that the guardian ad litem’s understandable failure to visit
Appellant’s recently-acquired residence was a question of weight, and not a
question of admissibility. See In re T.C., 6th Dist. Lucas No. L-15-1106,
2015-Ohio-3665, 2015 WL 5306552, ¶ 23 (observing that trial court entitled
to weigh guardian ad litem’s testimony); Hunter–June v. Pitts, 12th Dist.
Butler No. CA2013-09-179, 2014-Ohio-2473, 2014 WL 2568602, ¶ 21
(“The trial court heard the context and the explanations of the guardian ad
Athens App. No. 18CA15 19
litem with regard to her investigation and in support of her
recommendations, which were outlined in a 11–page report. * * * [T]he
guardian ad litem was questioned by both parents’ counsel. The magistrate
was entitled to believe or disbelieve her testimony and to consider it in light
of all of the other testimony presented at the hearing.”); In re M.Z., 9th Dist.
Lorain No. 11CA010104, 2012-Ohio-3194, 2012 WL 2874375, ¶ 35 (stating
that trial court permitted to “believe or disbelieve the guardian’s testimony
and to consider it in the context of all the evidence before the court”).
{¶48} Moreover, we observe that the guardian ad litem did not base
her recommendation solely upon whether Appellant could provide the
children with a physically appropriate home. Instead, the guardian ad litem
indicated that even if Appellant lived in a physically appropriate home, the
children need more than a structurally sound residence. The guardian ad
litem stated that the children—especially D.M. and N.M.—need consistency,
structure, and discipline and that she does not believe Appellant possesses
the capability to fulfill these needs. Thus, although the guardian ad litem left
open a possibility that Appellant’s physical environment may be adequate
for V.M., the guardian ad litem clarified that she does not believe Appellant
can provide the structure and discipline the children need.
Athens App. No. 18CA15 20
{¶49} Appellant nevertheless asserts that one of our earlier decisions
shows that the trial court should not have admitted the guardian ad litem’s
testimony. In re S.C., 189 Ohio App.3d 308, 2010–Ohio–3394, 938 N.E.2d
390 (4th Dist.). We find S.C. readily distinguishable. In S.C., the evidence
indicated that the trial court partially relied upon a two-year-old
psychological evaluation. Id. at ¶ 30. Here, by contrast, the guardian ad
litem did not base her report upon two-year-old information regarding
Appellant’s living situation. Instead, the guardian ad litem based her report
upon Appellant’s living situation as of the date the guardian prepared her
report. Appellant’s living situation did not change until one week before the
date of the guardian ad litem’s testimony. Moreover, the guardian ad litem
clarified that her recommendation did not account for Appellant’s changed
living situation. Again, we believe that the trial court was entitled to weigh
the guardian ad litem’s testimony in light of Appellant’s changed living
situation. We do not believe that the guardian ad litem’s understandable
failure to investigate Appellant’s recently-changed living situation rendered
her recommendation obviously irrelevant. Therefore, we do not believe that
the trial court plainly erred by admitting her testimony.
{¶50} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s first assignment of error.
Athens App. No. 18CA15 21
B.
Reasonable Efforts
{¶51} In her second assignment of error, Appellant argues that the
trial court erred by determining that it did not need to find that Appellee
used reasonable efforts to reunify the children with appellant. Appellant
recognizes that the court found that Appellee previously satisfied its duty to
use reasonable efforts, but Appellee disagrees with the trial court that it did
not need to make any further reasonable-efforts determination before
granting Appellee permanent custody.
{¶52} R.C. 2151.419(A)(1) requires a trial court to determine
whether a children services agency “made reasonable efforts to prevent the
removal of the child from the child’s home, to eliminate the continued
removal of the child from the child’s home, or to make it possible for the
child to return safely home.” However, this statute applies only at
“adjudicatory, emergency, detention, and temporary-disposition hearings,
and dispositional hearings for abused, neglected, or dependent children
* * *.” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816,
¶ 41; accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19,
2016-Ohio-916, 2016 WL 915012, ¶ 72. Thus, “ ‘[b]y its plain terms, the
statute does not apply to motions for permanent custody brought pursuant to
Athens App. No. 18CA15 22
R.C. 2151.413, or to hearings held on such motions pursuant to R.C.
2151.414.’ ” C.F. at ¶ 41, quoting In re A.C., 12th Dist. Clermont No.
CA2004-05-041, 2004-Ohio-5531, 2004 WL 2340127, ¶ 30. Nonetheless,
“[t]his does not mean that the agency is relieved of the duty to make
reasonable efforts” before seeking permanent custody. Id. at ¶ 42. Instead,
at prior “stages of the child-custody proceeding, the agency may be required
under other statutes to prove that it has made reasonable efforts toward
family reunification.” Id. Additionally, “[if] the agency has not established
that reasonable efforts have been made prior to the hearing on a motion for
permanent custody, then it must demonstrate such efforts at that time.” Id. at
¶ 43.
{¶53} We discussed the meaning of “reasonable efforts” in C.B.C.,
supra, at ¶ 76, as follows:
In general, “reasonable efforts” mean “ ‘[t]he state’s efforts to
resolve the threat to the child before removing the child or to permit
the child to return home after the threat is removed.’ ” C.F. at ¶ 28,
quoting Will L. Crossley, Defining Reasonable Efforts: Demystifying
the State's Burden Under Federal Child Protection Legislation, 12
B.U.Pub.Int.L.J. 259, 260 (2003). “ ‘Reasonable efforts means that a
children’s services agency must act diligently and provide services
appropriate to the family’s need to prevent the child’s removal or as a
predicate to reunification.’ ” In re H.M.K., 3rd Dist. Wyandot Nos.
16–12–15 and 16-12-16, 2013-Ohio-4317 [2013 WL 5447791], ¶ 95,
quoting In re D.A., 6th Dist. Lucas No. L-11-1197, 2012-Ohio-1104[2012 WL 929609], ¶ 30. In other words, the agency must use
reasonable efforts to help remove the obstacles preventing family
reunification. Bean, Reasonable Efforts: What State Courts Think, 36
Athens App. No. 18CA15 23
U. Tol. L.Rev. 321, 366 (2005), quoting In re Child of E.V., 634
N.W.2d 443, 447 (Minn.Ct.App.2001), and In re K.L.P., No. C1–99–
1235, 2000 WL 343203, at *5 (Minn.Ct.App. Apr. 4, 2000)
(explaining that the agency must address what is “necessary to correct
the conditions that led to the out-of-home placement” and must
“provide those services that would assist in alleviating the conditions
leading to the determination of dependency”). However,
“ ‘[r]easonable efforts’ does not mean all available efforts. Otherwise,
there would always be an argument that one more additional service,
no matter how remote, may have made reunification possible.” In re
Lewis, 4th Dist. Athens No. 03CA12, 2003-Ohio-5262 [2003 WL
22267129], ¶ 16. Furthermore, the meaning of “reasonable efforts”
“will obviously vary with the circumstances of each individual case.”
Suter v. Artist M., 503 U.S. 347, 360, 112 S.Ct. 1360, 118 L.Ed.2d 1(1992). Additionally, “[i]n determining whether reasonable efforts
were made, the child’s health and safety shall be paramount.” R.C.
2151.419(A)(1).
{¶54} We initially observe that Appellant never argued during the
trial court proceedings that Appellee failed to use reasonable efforts to
reunite the children with her. Thus, absent plain error, Appellant has
forfeited the argument for purposes of appeal. In re S.C., 189 Ohio App.3d
308, 2010–Ohio–3394, 938 N.E.2d 390 (4th Dist.) ¶¶ 40–41; In re T.S., 8th
Dist. No. 92816, 2009–Ohio–5496, ¶ 17; In re Slider, 160 Ohio App.3d 159,
2005–Ohio–1457, 826 N.E.2d 356, ¶ 11 (4th Dist); accord In re J.W., 9th
Dist. Summit No. 28966, 2018-Ohio-3897, 2018 WL 4656088, ¶ 7.
{¶55} The trial court did not plainly err by failing to enter another
reasonable-efforts determination before ruling upon Appellee’s permanent
custody motion. Appellee filed its permanent custody motion under R.C.
Athens App. No. 18CA15 24
2151.413. Furthermore, throughout the proceedings below, the trial court
made several findings that Appellee used reasonable efforts to prevent the
children’s continued removal from the home. Thus, R.C. 2151.419(A)(1)
did not require the trial court to make an additional reasonable-efforts
finding when it issued its permanent custody decision. See In re N.A.P., 4th
Dist. Washington No. 12CA30, 2013-Ohio-689, 2013 WL 772815, ¶ 44.
Moreover, Appellant has not cited any authority for her proposition that a
trial court must make another reasonable-efforts determination if a child’s
caregiver makes improvements during the course of the permanent custody
hearing. We therefore summarily reject this proposition.
{¶56} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s second assignment of error.
C.
Permanent Custody Decision
{¶57} In her third assignment of error, Appellant essentially asserts
that the trial court’s decision to award Appellee permanent custody of the
children is against the manifest weight of the evidence. She alleges that the
record does not contain clear and convincing evidence to support the court’s
judgment.
1. Standard of Review
Athens App. No. 18CA15 25
{¶58} Generally, a reviewing court will not disturb a trial court’s
permanent custody decision unless the decision is against the manifest
weight of the evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26,
2014–Ohio–3178, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013–
Ohio–5569, ¶ 29.
“Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of
the issue rather than the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be
established before them. Weight is not a question of mathematics, but
depends on its effect in inducing belief.’ ” Eastley v. Volkman, 132
Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 12, quoting
State v. Thompkins,78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶59} When an appellate court reviews whether a trial court’s
permanent custody decision is against the manifest weight of the evidence,
the court “ ‘ “weighs the evidence and all reasonable inferences, considers
the credibility of witnesses and determines whether in resolving conflicts in
the evidence, the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.” ’ ” Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio
App.3d 103, 115, 750 N.E.2d 176 (9th Dist.2001), quoting Thompkins, 78
Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485
Athens App. No. 18CA15 26
N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist. Summit No.
20894, 2002–Ohio–2208, ¶¶ 23–24.
{¶60} The question that we must resolve when reviewing a
permanent custody decision under the manifest weight of the evidence
standard is “whether the juvenile court’s findings * * * were supported by
clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008–
Ohio–4825, 895 N.E.2d 809, ¶ 43. “Clear and convincing evidence” is:
the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the allegations sought to
be established. It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as required
beyond a reasonable doubt as in criminal cases. It does not mean clear
and unequivocal. In re Estate of Haynes, 25 Ohio St.3d 101, 103–04,
495 N.E.2d 23 (1986).
In determining whether a trial court based its decision upon clear and
convincing evidence, “a reviewing court will examine the record to
determine whether the trier of facts had sufficient evidence before it to
satisfy the requisite degree of proof.” State v. Schiebel, 55 Ohio St.3d 71, 74,
564 N.E.2d 54 (1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481
N.E.2d 613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d
118 (1954) (“Once the clear and convincing standard has been met to the
satisfaction of the [trial] court, the reviewing court must examine the record
and determine if the trier of fact had sufficient evidence before it to satisfy
Athens App. No. 18CA15 27
this burden of proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42–43, 495
N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163, 165, 492
N.E.2d 140 (1986) (stating that whether a fact has been “proven by clear and
convincing evidence in a particular case is a determination for the [trial]
court and will not be disturbed on appeal unless such determination is
against the manifest weight of the evidence”). Thus, if the children services
agency presented competent and credible evidence upon which the trier of
fact reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of the
evidence. In re R.M., 4th Dist. Athens Nos. 12CA43 and 12CA44, 2013–
Ohio–3588, ¶ 62; In re R.L., 2nd Dist. Greene Nos. 2012CA32 and
2012CA33, 2012–Ohio–6049, ¶ 17, quoting In re A.U., 2nd Dist.
Montgomery No. 22287, 2008–Ohio–187, ¶ 9 (“A reviewing court will not
overturn a court’s grant of permanent custody to the state as being contrary
to the manifest weight of the evidence ‘if the record contains competent,
credible evidence by which the court could have formed a firm belief or
conviction that the essential statutory elements * * * have been
established.’ ”). Once the reviewing court finishes its examination, the court
may reverse the judgment only if it appears that the fact-finder, when
resolving the conflicts in evidence, “ ‘clearly lost its way and created such a
Athens App. No. 18CA15 28
manifest miscarriage of justice that the [judgment] must be reversed and a
new trial ordered.’ ” Thompkins, 78 Ohio St.3d at 387, quoting State v.
Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). A
reviewing court should find a trial court’s permanent custody decision
against the manifest weight of the evidence only in the “ ‘exceptional case in
which the evidence weighs heavily against the [decision].’ ” Id., quoting
Martin, 20 Ohio App.3d at 175; accord State v. Lindsey, 87 Ohio St.3d 479,
483, 721 N.E.2d 995 (2000).
{¶61} Furthermore, when reviewing evidence under the manifest
weight of the evidence standard, an appellate court generally must defer to
the fact-finder’s credibility determinations. Eastley at ¶ 21. As the Eastley
court explained:
“[I]n determining whether the judgment below is manifestly
against the weight of the evidence, every reasonable intendment must
be made in favor of the judgment and the finding of facts. * * *
If the evidence is susceptible of more than one construction, the
reviewing court is bound to give it that interpretation which is
consistent with the verdict and judgment, most favorable to sustaining
the verdict and judgment.”Id., quoting Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.3,
quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at
191–192 (1978).
{¶62} Moreover, deferring to the trial court on matters of credibility
is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.”
Athens App. No. 18CA15 29
Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997);
accord In re Christian, 4th Dist. Athens No. 04CA10, 2004–Ohio–3146, ¶ 7.
As the Supreme Court of Ohio long-ago explained:
In proceedings involving the custody and welfare of children the
power of the trial court to exercise discretion is peculiarly important.
The knowledge obtained through contact with and observation of the
parties and through independent investigation can not be conveyed to
a reviewing court by printed record. Trickey v. Trickey, 158 Ohio St.
9, 13, 106 N.E.2d 772 (1952).
{¶63} Furthermore, unlike an ordinary civil proceeding in which a
judge has little to no contact with the parties before a trial, in a permanent
custody case a trial court judge may have significant contact with the parties
before a permanent custody motion is even filed. In such a situation, it is not
unreasonable to presume that the trial court judge had far more opportunities
to evaluate the credibility, demeanor, attitude, etc., of the parties than this
court ever could from a mere reading of the permanent custody hearing
transcript.
2. Permanent Custody Principles
{¶64} A parent has a “fundamental liberty interest” in the care,
custody, and management of his or her child and an “essential” and “basic
civil right” to raise his or her children. Santosky v. Kramer, 455 U.S. 745,
753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Murray, 52 Ohio St.3d
155, 157, 556 N.E.2d 1169 (1990); accord In re D.A., 113 Ohio St.3d 88,
Athens App. No. 18CA15 30
2007–Ohio–1105, 862 N.E.2d 829, ¶¶ 8–9. A parent’s rights, however, are
not absolute. D.A. at ¶ 11. Rather, “ ‘it is plain that the natural rights of a
parent * * * are always subject to the ultimate welfare of the child, which is
the polestar or controlling principle to be observed.’ ” In re Cunningham, 59
Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.J.C., 300
So.2d 54, 58 (Fla.App.1974). Thus, the State may terminate parental rights
when a child’s best interest demands such termination. D.A. at ¶ 11.
3. Permanent Custody Framework
{¶65} A children services agency may obtain permanent custody of a
child by (1) requesting it in the abuse, neglect or dependency complaint
under R.C. 2151.353, or (2) filing a motion under R.C. 2151.413 after
obtaining temporary custody. In this case, Appellee sought permanent
custody of the child by filing a motion under R.C. 2151.413. When an
agency files a permanent custody motion under R.C. 2151.413, R.C.
2151.414 applies. R.C. 2151.414(A).
{¶66} R.C. 2151.414(A)(1) requires the court to hold a hearing. The
primary purpose of the hearing is to allow the court to determine whether the
child’s best interests would be served by permanently terminating the
parental relationship and by awarding permanent custody to the agency. Id.Additionally, when considering whether to grant a children services agency
Athens App. No. 18CA15 31
permanent custody, a trial court should consider the underlying purposes of
R.C. Chapter 2151: “to care for and protect children, ‘whenever possible, in
a family environment, separating the child from the child's parents only
when necessary for the child’s welfare or in the interests of public safety.’ ”
In re C.F., 113 Ohio St.3d 73, 2007–Ohio–1104, 862 N.E.2d 816, ¶ 29,
quoting R.C. 2151.01(A).
{¶67} R.C. 2151.414(B)(1) permits a trial court to grant permanent
custody of a child to a children services agency if the court determines, by
clear and convincing evidence, that the child’s best interest would be served
by the award of permanent custody and that one of the following conditions
applies:
(a) The child is not abandoned or orphaned or has not been in
the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months
of a consecutive twenty-two month period ending on or after March
18, 1999, and the child cannot be placed with either of the child’s
parents within a reasonable time or should not be placed with the
child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child
who are able to take permanent custody.
(d) The child has been in the temporary custody of one or more
public children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two month period
ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent or
parents from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three separate
occasions by any court in this state or another state.
Athens App. No. 18CA15 32
Thus, before a trial court may award a children services agency permanent
custody, it must find (1) that one of the circumstances described in R.C.
2151.414(B)(1) applies, and (2) that awarding the children services agency
permanent custody would further the child’s best interest.
{¶68} In the case at bar, Appellant does not clarify whether she
challenges the trial court’s finding that one of the circumstances specified in
R.C. 2151.414(B)(1) applies, its best-interest finding, or both. However, she
appears to limit her challenge to the trial court’s best-interest determination.
We limit our review accordingly.
a. Best Interest Factors
{¶69} In the case at bar, Appellant argues that the best-interest factors
favor preserving the family unit. Appellant asserts that the evidence plainly
shows that she shares “a significant bond with her grandchildren” and that
granting Appellee permanent custody of the children would create “trauma
and distress.” Appellant additionally claims that the trial court did not
adequately consider that Appellant’s mother would help her care for the
children or that Appellant recently acquired a physically appropriate home
for the children.
{¶70} R.C. 2151.414(D) requires a trial court to consider specific
factors to determine whether a child’s best interest will be served by
Athens App. No. 18CA15 33
granting a children services agency permanent custody. The factors include:
(1) the child’s interaction and interrelationship with the child’s parents,
siblings, relatives, foster parents and out-of-home providers, and any other
person who may significantly affect the child; (2) the child’s wishes, as
expressed directly by the child or through the child’s guardian ad litem, with
due regard for the child's maturity; (3) the child’s custodial history; (4) the
child’s need for a legally secure permanent placement and whether that type
of placement can be achieved without a grant of permanent custody to the
agency; and (5) whether any factors listed under R.C. 2151.414(E)(7) to (11)
apply.1
1
R.C. 2151.414(E)(7) to (11) state:
(7) The parent has been convicted of or pleaded guilty to [certain criminal offenses].
****
(8) The parent has repeatedly withheld medical treatment or food from the child when the
parent has the means to provide the treatment or food, and, in the case of withheld medical
treatment, the parent withheld it for a purpose other than to treat the physical or mental illness or
defect of the child by spiritual means through prayer alone in accordance with the tenets of a
recognized religious body.
(9) The parent 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 pursuant to section 2151.412 of the
Revised Code 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.
(10) The parent has abandoned the child.
(11) The parent has had parental rights involuntarily terminated with respect to a sibling
of the child pursuant to this section or section 2151.353 or 2151.415 of the Revised Code, or under
an existing or former law of this state, any other state, or the United States that is substantially
equivalent to those sections, and the parent has failed to provide clear and convincing evidence to
prove that, notwithstanding the prior termination, the parent can provide a legally secure
permanent placement and adequate care for the health, welfare, and safety of the child.
Athens App. No. 18CA15 34
{¶71} Determining whether granting permanent custody to a children
services agency will promote a child’s best interest involves a delicate
balancing of “all relevant [best interest] factors,” as well as the “five
enumerated statutory factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio
St.3d 498, 2006–Ohio–5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th
Dist. Summit Nos. 24097 and 24099, 2008–Ohio–3773, ¶ 28; In re N.W.,
10th Dist. Franklin Nos. 07AP–590 and 07AP–591, 2008–Ohio–297, 2008
WL 224356, ¶ 19. However, none of the best interest factors requires a
court to give it “greater weight or heightened significance.” C.F. at ¶ 57.
Instead, the trial court considers the totality of the circumstances when
making its best interest determination. Id. at ¶ 63-64 (noting that court
evaluates totality of the circumstances when considering child’s best interest
in permanent custody proceeding); e.g., In re A.M., 4th Dist. Athens No.
17CA43, 2018-Ohio-2072, 2018 WL 2436454, ¶ 55, citing In re K.M.S., 3rd
Dist. Marion Nos. 9–15–37, 9–15–38, and 9–15–39, 2017–Ohio–142, 2017
WL 168864, ¶ 24, and In re A.C., 9th Dist. Summit No. 27328, 2014–Ohio–
4918, ¶ 46. In general, “[a] child’s best interest is served by placing the
child in a permanent situation that fosters growth, stability, and security.” In
re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016–Ohio–916,
Athens App. No. 18CA15 35
2016 WL 915012, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio St.3d
319, 324, 574 N.E.2d 1055 (1991).
i. Children’s Interactions and Interrelationships
{¶72} The children and Appellant share a strong bond and their love
is evident. The children looked forward to visiting Appellant.
Unfortunately, Appellant admittedly did not prioritize their needs when they
were in her care. Appellant conceded that her care of the children was
“pretty shitty.” Indeed, the children’s behavioral and emotional states
document that they did not receive adequate care when in Appellant’s
custody. N.M., at four years of age, was nonverbal when she entered
Appellee’s temporary custody, uttering only animal noises and grunts. D.M.
and V.M. reportedly engaged in sexual behaviors with each other. V.M. told
elaborate tales and acted aggressively. D.M. hurt or killed animals and had
anger issues. Thus, while on the surface the familial bonds appear strong,
Appellant’s interaction and interrelationship with the children has not
resulted in a positive outcome for the children. See In re J.F., 8th Dist. No.
105504, 2018-Ohio-96, 102 N.E.3d 1264, 2018 WL 386668, ¶ 65 (stating
that “existence of a positive relationship,” by itself, not determinative of
child’s best interest); In re J.B., 8th Dist. Cuyahoga Nos. 98518 and 98519,
2013–Ohio–1703, 2013 WL 1799849, ¶ 111 (noting that although “[f]amily
Athens App. No. 18CA15 36
unity and blood relationship” may be “vital factors” to consider when
determining child’s best interest, neither is controlling); accord In re S.S.-1,
4th Dist. Athens No. 17CA44, 2018-Ohio-1349, 2018 WL 1720650, ¶ 76.
{¶73} Additionally, Appellee expressed concern that Appellant was
unable to adequately supervise the children. The caseworker testified that
Appellee attempted off-site visits but terminated them due to Appellant’s
lack of control over the children.
{¶74} The children do not have a positive relationship with their
mother. V.M. initially had a relationship with her father, but the trial court
found that the relationship turned hurtful to V.M. Neither D.M. nor N.M.
has a relationship with a biological father.
{¶75} The three children do not have overly positive interactions and
interrelationships with each other. V.M. and N.M. “struggle” to get along.
D.M. and V.M. engaged in sexual conduct—conduct that is wholly
inappropriate in a sibling relationship. V.M. has stated that she does not
want to live in the same household as D.M.
{¶76} All of the children have shown at least mild improvement in
their behaviors while in their foster homes. While none of the foster
families intend to adopt the children, the foster families try to provide the
children with structure and discipline.
Athens App. No. 18CA15 37
{¶77} In sum, although the children and Appellant share a strong
familial bond, the children have not achieved favorable outcomes while in
Appellant’s care.
ii. Children’s Wishes
{¶78} All three children wish to be returned to Appellant. However,
the guardian ad litem testified that placing the children in Appellee’s custody
is in their best interest. In re S.M., 4th Dist. Highland No. 14CA4, 2014–
Ohio–2961, ¶ 32 (noting that R.C. 2151.414 permits court to consider child's
wishes as child directly expresses or through the guardian ad litem).
c. Custodial History
{¶79} V.M. lived with Appellant until late 2016, when Appellee
obtained temporary custody. D.M. and N.M. lived with Appellant for
approximately three years before Appellee obtained temporary custody.
Before then, they lived with their mother. Since their removal, the children
have remained in the same foster homes.
{¶80} When Appellee filed its permanent custody motion, the
children had not yet been in Appellee’s temporary custody for more than
twelve months.
Athens App. No. 18CA15 38
iv. Legally Secure Permanent Placement
{¶81} “Although the Ohio Revised Code does not define the term
‘legally secure permanent placement,’ this court and others have generally
interpreted the phrase to mean a safe, stable, consistent environment where a
child’s needs will be met.” In re M.B., 4th Dist. Highland No. 15CA19,
2016–Ohio–793, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12,
2001 WL 925423, *9 (Aug. 9, 2001) (implying that “legally secure
permanent placement” means a “stable, safe, and nurturing environment”);
see also In re K.M., 10th Dist. Franklin Nos. 15AP–64 and 15AP–66, 2015–
Ohio–4682, ¶ 28 (observing that legally secure permanent placement
requires more than stable home and income but also requires environment
that will provide for child’s needs); In re J.H., 11th Dist. Lake No. 2012–L–
126, 2013–Ohio–1293, ¶ 95 (stating that mother unable to provide legally
secure permanent placement when she lacked physical and emotional
stability and that father unable to do so when he lacked grasp of parenting
concepts); In re J.W., 171 Ohio App.3d 248, 2007–Ohio–2007, 870 N.E.2d
245, ¶ 34 (10th Dist.) (Sadler, J., dissenting) (stating that a legally secure
permanent placement means “a placement that is stable and consistent”);
Black’s Law Dictionary 1354 (6th Ed.1990) (defining “secure” to mean, in
part, “not exposed to danger; safe; so strong, stable or firm as to insure
Athens App. No. 18CA15 39
safety”); Id. at 1139 (defining “permanent” to mean, in part, “[c]ontinuing or
enduring in the same state, status, place, or the like without fundamental or
marked change, not subject to fluctuation, or alteration, fixed or intended to
be fixed; lasting; abiding; stable; not temporary or transient”). Thus, “[a]
legally secure permanent placement is more than a house with four walls.
Rather, it generally encompasses a stable environment where a child will
live in safety with one or more dependable adults who will provide for the
child’s needs.” M.B. at ¶ 56.
{¶82} We also observe that a trial court that is evaluating a child’s
need for a legally secure permanent placement and whether the child can
achieve that type of placement need not determine that terminating parental
rights is “not only a necessary option, but also the only option.” Schaefer,
supra, at ¶ 64. Rather, once the court finds the existence of any one of the
R.C. 2151.414(B)(1)(a)-(e) factors, R.C. 2151.414(D)(1) requires the court
to weigh “all the relevant factors * * * to find the best option for the child.”
Id. “The statute does not make the availability of a placement that would not
require a termination of parental rights an all-controlling factor. The statute
does not even require the court to weigh that factor more heavily than other
factors.” Id. Instead, a child’s best interest is served by placing the child in a
Athens App. No. 18CA15 40
permanent situation that fosters growth, stability, and security. In re
Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055 (1991).
{¶83} Additionally, courts are not required to favor relative
placement if, after considering all the factors, it is in the child’s best interest
for the agency to be granted permanent custody. Schaefer at ¶ 64; accord In
re T.G., 4th Dist. Athens No. 15CA24, 2015–Ohio–5330, ¶ 24; In re V.C.,
8th Dist. Cuyahoga No. 102903, 2015–Ohio–4991, ¶ 61 (stating that
relative’s positive relationship with child and willingness to provide an
appropriate home did not trump child’s best interest). We again observe that
“[i]f permanent custody is in the child’s best interest, legal custody or
placement with [a parent or other relative] necessarily is not.” K.M. at ¶ 9.
Moreover, “relatives seeking custody of a child are not afforded the same
presumptive rights that a natural parent receives.” In re M.H., 5th Dist.
Muskingum No. CT2015–0061, 2016–Ohio–1509, 2016 WL 1426473, ¶ 25.
{¶84} In the case at bar, the evidence shows that the children need a
legally secure permanent placement and that they cannot achieve this type of
placement without granting Appellee permanent custody. None of the
parents have a legally secure permanent placement for the children.
{¶85} Furthermore, Appellant does not have a legally secure
permanent placement for the children. Appellant agrees that her current
Athens App. No. 18CA15 41
residence cannot physically house all three children. Moreover, Appellant
did not illustrate that she will prioritize the children’s needs or be able to
provide them with the structured environment that their needs demand.
Appellant admittedly has her own mental health issues that she continues to
address. She only recently obtained independent housing. Before that, she
lived briefly with her mother. During the approximately twenty years before
Appellant moved in with her mother, Appellant lived in a home with her
former husband. Even when Appellant had the support of her husband,
Appellant did not adequately supervise or care for the children.
{¶86} Consequently, the trial court’s finding that the children need a
legally secure permanent placement and that they cannot achieve this type of
placement without granting Appellee permanent custody is not against the
manifest weight of the evidence.
v. R.C. 2151.414(E)(7) to (11)
{¶87} The trial court found that the mother and the fathers abandoned
their children and, thus, that R.C. 2151.414(E)(10) applies.
vi. Balancing
{¶88} Here, we are unable to conclude that the trial court’s best-
interest determination is against the manifest weight of the evidence. A
balancing of the factors supports the trial court’s decision that placing the
Athens App. No. 18CA15 42
children in Appellee’s permanent custody is in their best interests. The
children desperately need permanency and stability in order to address their
behavioral and emotional issues. Appellant unfortunately showed that when
the children were in her custody, she did not prioritize their needs. While
she claims to have learned the errors of her ways, the trial court had no
obligation to experiment with the children’s welfare.
“* * * [A] child should not have to endure the inevitable to its great
detriment and harm in order to give the * * * [parent] an opportunity
to prove her suitability. To anticipate the future, however, is at most,
a difficult basis for a judicial determination. The child’s present
condition and environment is the subject for decision not the expected
or anticipated behavior of unsuitability or unfitness of the * * *
[parent]. * * * The law does not require the court to experiment with
the child’s welfare to see if he will suffer great detriment or harm.” In
re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, 2014 WL
7477958, ¶ 48, quoting In re Bishop, 36 Ohio App.3d 123, 126, 521
N.E.2d 838 (5th Dist. 1987).
{¶89} Accordingly, based upon the foregoing reasons, we overrule
Appellant’s third assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Athens App. No. 18CA15 43
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that costs be
assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Common Pleas Court, Juvenile Division, to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Hoover, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ______________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.