In re B.M.

2023 Ohio 4088

Opinion

[Cite as In re B.M., 2023-Ohio-4088.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

IN RE:

B.M., CASE NO. 8-23-03

ADJUDGED DEPENDENT CHILD. OPINION [KRYSTA J. - APPELLANT]

IN RE:

G.J., CASE NO. 8-23-04

ADJUDGED DEPENDENT CHILD. OPINION [KRYSTA J. - APPELLANT] [JORRELL J. - APPELLANT]

Appeals from Logan County Common Pleas Court Family Court Division Trial Court No. 20-CS-0024(A) and 20-CS-0024(B)

Judgments Affirmed

Date of Decision: November 13, 2023

APPEARANCES:

Autumn D. Adams for Appellants

Evan R. Downing for Appellee Case Nos. 8-23-03 and 8-23-04

WALDICK, J.

{¶1} In Case Number 8-23-03, mother-appellant, Krysta J. (“Krysta),

appeals the March 8, 2023 judgment of the Logan County Common Pleas Court,

Family Court Division, granting permanent custody of her child B.M. to the

appellee, Logan County Children’s Services agency (“LCCS” or “the agency”). On

appeal, Krysta argues that the trial court’s decision granting permanent custody to

the agency was against the manifest weight of the evidence.

{¶2} In Case Number 8-23-04, Krysta and her now husband, Jorrell J.

(“Jorrell”), each appeal the March 8, 2023 judgment of the Logan County Common

Pleas Court, Family Court Division, granting permanent custody of their child, G.J.,

to the appellee, LCCS. On appeal, Krysta and Jorrell argue that the trial court’s

decision granting permanent custody to the agency was against the manifest weight

of the evidence.

{¶3} For the reasons that follow, we affirm the judgment of the trial court in

both cases, which have been consolidated by this Court for purposes of briefing and

argument on appeal.

Background

{¶4} In mid-2018, B.M., a female, was born to unwed parents, Krysta and

Austin M. (“Austin”).1

1 Austin was served notice and was appointed counsel in the initial proceedings below involving B.M., but was ultimately removed from the LCCS case plan at his request. Through Austin’s counsel, the trial court was subsequently advised that Austin wished no further involvement in the case involving B.M.

-2- Case Nos. 8-23-03 and 8-23-04

{¶5} In early 2020, G.J., also a female, was born to Krysta and Jorrell, who

were unwed at the time.2

{¶6} On April 9, 2020, LCCS filed complaints in the Family Court Division

of the Logan County Court of Common Pleas, alleging that B.M. and G.J. were

dependent children. Specifically, the complaints alleged that the two children were

living with Krysta and Jorrell and that a “referent source” had reported that Jorrell

had recently beaten Krysta. It was further alleged that Jorrell had been arrested two

to three months before for another domestic violence incident where Krysta was the

victim, and that Jorrell had also been arrested the month before on cocaine charges.

The complaints stated that on April 2, 2020, an LCCS investigator conducted a

home visit and observed Krysta to have a cut on her forehead, which Krysta stated

was from running into a door; however, Krysta and Jorrell admitted a domestic

violence incident had occurred between them a few months prior. The complaints

alleged that a close family member of Krysta’s refuted Krysta’s and Jorrell’s denial

of any more recent domestic violence. The complaints stated that on April 7, 2020,

a second home visit was conducted by LCCS and Krysta was observed to have a

bruise around her eye, which Krysta claimed was from being head-butted by one of

the children. That home visit ended when Krysta became extremely agitated and

kicked the agency investigator out of the home. The complaints further alleged that

2 Krysta and Jorrell subsequently married in January of 2021.

-3- Case Nos. 8-23-03 and 8-23-04

Jorrell was indicted in September of 2019 for domestic violence, a third-degree

felony based on the fact he had two prior convictions for the same crime. The

complaints stated that Jorrell was arraigned on that indictment on March 13, 2020

and ordered as a condition of his bond to have no contact with Krysta. Finally, the

complaints noted that Krysta had a long history with LCCS and stated that B.M. had

been previously removed from Krysta’s care and placed in foster care, based on the

agency’s ongoing concerns with Krysta’s mental health, her marijuana use, and her

involvement in two relationships where domestic violence was an issue with the

fathers of her children. The complaints noted that G.J. had been born during the

pendency of B.M.’s prior children’s services case but G.J. was not removed from

her mother’s care because Krysta was doing well in complying with

the case plan at that time. Finally, the complaints noted that B.M.’s prior case had

been closed in early 2020 and B.M. had been returned to Krysta, as Krysta had

satisfactorily completed the case plan in that case.

{¶7} In the instant cases, on April 10, 2020, the trial court granted the

agency’s motion for emergency temporary custody of the two children.

{¶8} On May 8, 2020, the agency filed a proposed case plan relating to both

children.

{¶9} On May 21, 2020, an adjudicatory hearing was held. As reflected by

judgment entry filed on June 8, 2020, the parties stipulated at the hearing that B.M.

and G.J. were dependent children pursuant to R.C. 2151.04(C).

-4- Case Nos. 8-23-03 and 8-23-04

{¶10} On July 6, 2020, a dispositional hearing was held and, by judgment

entry filed August 19, 2020, LCCS was ordered to be maintained as the temporary

custodian of the two children. In that entry, the court also approved the case plan

filed by the agency on May 8, 2020.

{¶11} Subsequent progress review documents filed by LCCS with the trial

court reflected that both Krystal and Jorrell continued to make “insufficient

progress” toward addressing the agency’s concerns in the cases.

{¶12} On December 29, 2020, LCCS filed a motion seeking permanent

custody of B.M., alleging that B.M. had been in the temporary custody of the agency

for twelve or more months of a consecutive 22-month period and that it would be in

the best interest of the child for permanent custody to be granted to LCCS.

{¶13} On September 23, 2021, LCCS filed a motion seeking permanent

custody of G.J., alleging that G.J. had been in the temporary custody of the agency

for twelve or more months of a consecutive 22-month period and that it would be in

the best interest of the child for permanent custody to be granted to LCCS.

{¶14} In both cases, a multi-part permanent custody hearing was held on 10

different dates between March 18, 2022 and November 1, 2022.

{¶15} On March 8, 2023, the trial court filed a lengthy judgment entry in

which the court reviewed the record of the cases and summarized the evidence

presented at the multi-day permanent custody hearing. After conducting that

-5- Case Nos. 8-23-03 and 8-23-04

review, and making findings of fact based on the evidence presented, the trial court

found that both children had been in the agency’s custody for twelve or more months

of a consecutive 22-month period, that neither child could be placed with a parent

within a reasonable period of time, and that it was in the best interest of both children

that LCCS be granted permanent custody of the two children. For those reasons,

the trial court granted the agency’s motion for permanent custody in both cases, and

terminated the parental rights of Krysta and Austin as to B.M., and of Krysta and

Jorrell as to G.J.

{¶16} On March 9, 2023, Krysta filed appeals in both cases. On March 14,

2023, Jorrell filed an appeal in the case involving G.J.

{¶17} By subsequent order of this Court, the appeals in both cases were

consolidated, and Krysta and Jorrell have opted to file a joint merit brief relating to

both cases.

Assignment of Error

It was against the manifest weight of the evidence for the Trial Court to grant LCCS’ motion for permanent custody.

Analysis

{¶18} “[T]he right to raise one’s children is an ‘essential’ and ‘basic civil

right.’” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990),

quoting Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

“Parents have a ‘fundamental liberty interest’ in the care, custody, and management

-6- Case Nos. 8-23-03 and 8-23-04

of their children.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982). “The rights and interests of a natural parent are not,

however, absolute: where a court finds that permanent custody is appropriate under

circumstances of a particular case and all due process safeguards have been

followed, whatever residual rights a parent may have are properly divested.” In

re Leveck, 3d Dist. Hancock Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269,

¶ 6.

{¶19} “Decisions concerning child custody matters lie within the sound

discretion of the trial court and will not be reversed unless the trial court abused its

discretion.” In re Leveck, supra, ¶ 7, citing Miller v. Miller, 37 Ohio St.3d 71, 74,

523 N.E.2d 846 (1988). An abuse of discretion involves more than a mere error of

law or judgment; rather, it implies that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983). “In reviewing this exercise of discretion, appellate courts must

adhere to ‘every reasonable presumption in favor of the lower court’s judgment and

finding of facts.’” In re Leveck, supra, at ¶ 7, quoting In re Brodbeck, 97 Ohio

App.3d 652, 659, 647 N.E.2d 240 (1994).

{¶20} “R.C. 2151.414 outlines the procedures that protect the interests of

parents and children in a permanent custody proceeding.” In re N.R.S., 3d Dist.

Crawford Nos. 3-17-07, 3-17-08 and 3-17-09, 2018-Ohio-125, ¶ 12, citing In re

B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, ¶ 26. “When considering a motion for

-7- Case Nos. 8-23-03 and 8-23-04

permanent custody of a child, the trial court must comply with the statutory

requirements set forth in R.C. 2151.414.” In re A.M., 3d Dist. Marion No. 9-14-46,

2015-Ohio-2740, ¶ 13. Specifically, “R.C. 2151.414(B)(1) establishes a two-part

test for courts to apply when determining whether to grant a motion

for permanent custody: (1) the trial court must find that one of the circumstances in

R.C. 2151.414(B)(1)(a)-(e) applies, and (2) the trial court must find

that permanent custody is in the best interest of the child.” In re Y.W., 3d Dist. Allen

No. 1-16-60, 2017-Ohio-4218, ¶ 10.

{¶21} “The first prong of that test requires a finding by clear and convincing

evidence that one of the statutorily-prescribed situations of R.C. 2151.414(B)(1) is

satisfied.” In re N.F., 3d Dist. Marion No. 9-22-40, 2023-Ohio-566, ¶ 19. In that

respect, R.C. 2151.414 provides:

(B)(1) Except as provided in division (B)(2) of this section, the court may grant permanent custody of a child to a movant if the court determines at the hearing held pursuant to division (A) of this section, by clear and convincing evidence, that it is in the best interest of the child to grant permanent custody of the child to the agency that filed the motion for permanent custody and that any of the following apply:

(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

-8- Case Nos. 8-23-03 and 8-23-04

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 an abused, neglected, or dependent child on three separate occasions by any court in this state or another state.

For the purposes of division (B)(1) of this section, a child shall be considered to have entered the temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section 2151.28 of the Revised Code or the date that is sixty days after the removal of the child from home.

{¶22} Then, in determining the best interest of the child, R.C. 2151.414(D)

directs the trial court to consider all relevant factors, including but not limited to:

(1) the interaction and interrelationship of the child with the child’s parents,

relatives, foster parents and any other person who may significantly affect the child;

(2) the wishes of the child; (3) the custodial history of the child, including whether

the child has been in the temporary custody of one or more public children services

-9- Case Nos. 8-23-03 and 8-23-04

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period; (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 of the factors in

R.C. 2151.414(E)(7) through (11) are applicable.

{¶23} Pursuant to R.C. 2151.414(B)(1), an award of permanent custody must

be based on clear and convincing evidence. In re H.M. 3d Dist. Logan No. 8-18-46,

2019-Ohio-3721, ¶ 44. “Clear and convincing evidence is that measure or degree

of proof which is more than a mere ‘preponderance of the evidence,’ but not to the

extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases,

and which will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus. “Where the degree of proof

required to sustain an issue must be clear and convincing, a reviewing court will

examine the record to determine whether the trier of facts had sufficient evidence

before it to satisfy the requisite degree of proof.” Id. at 477.

{¶24} In reviewing whether a trial court’s permanent custody decision is

against the manifest weight of the evidence, an appellate court “‘weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and

determines whether in resolving conflicts in the evidence, the [finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the [judgment]

-10- Case Nos. 8-23-03 and 8-23-04

must be reversed and a new trial ordered.’” Eastley v. Volkman, 132 Ohio St.3d 328,

2012-Ohio-2179, at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115,

750 N.E.2d 176 (9th Dist. 2001). Furthermore, “‘[w]eight 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 [trier-

of-fact] 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.”’”

(Emphasis sic.) Eastley at ¶ 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).

{¶25} Finally, issues relating to the credibility of witnesses and the weight to

be given to the evidence are primarily for the trier-of-fact. Seasons Coal Co. Inc. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial

court on matters of credibility is “crucial in a child custody case, where there may

be much evident in the parties’ demeanor and attitude that does not translate to the

record well.” (Emphasis sic.) Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674

N.E.2d 1159 (1997). “‘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 A.B., 3d Dist. Marion No. 9-22-

-11- Case Nos. 8-23-03 and 8-23-04

12, 2022-Ohio-4234, ¶ 12, quoting In re R.M., 4th Dist. Athens Nos. 12CA43 and

12CA44, 2013-Ohio-3588, ¶ 55.

{¶26} In the instant case, with regard to the first prong of the two-prong test,

the trial court found by clear and convincing evidence that both children had been

in the agency’s temporary custody for twelve or more months of a consecutive 22-

month period. Under the plain language of R.C. 2151.414(B)(1)(d), when a child

has been in an agency’s temporary custody for twelve or more months of a

consecutive 22-month period, a trial court need not find that the child cannot be

placed with either parent within a reasonable time or should not be placed with the

parents. In re I.G., 3d Dist. Marion Nos. 9-13–43, 9–13–44, and 9-13-45, 2014-

Ohio-1136, ¶ 30, citing R.C. 2151.414(B)(1)(d); In re A.M., 3d Dist. Marion No. 9-

14-46, 2015-Ohio-2740, ¶ 14.

{¶27} On appeal, Krysta and Jorrell do not dispute that LCCS satisfied the

R.C. 2151.414(B)(1)(d) “12 in 22 standard” as to both children, a finding which is

also supported by the record. Therefore, we move on to consider whether the trial

court’s best-interest of the child finding is also supported by clear and convincing

evidence.

{¶28} In its written decision, the trial court reviewed the evidence presented

at the permanent custody hearing in light of the best-interest analysis required by

R.C. 2151.414(D) and made comprehensive findings of fact based on that evidence.

-12- Case Nos. 8-23-03 and 8-23-04

{¶29} As an initial matter, the trial court accurately noted that the issues in

the cases “have been essentially the same since 2018, to wit: domestic violence with

the mother usually being the victim; use of illicit substances; and the state of the

mother’s mental health.” (Journal Entry of Judgment, Docket No. 376, Page 7).

{¶30} As the trial court then noted, the evidence established that since the

dependency complaints relating to B.M. and G.J. were filed on April 8, 2020, at

least 45 police reports had been made that involved Krysta and/or Jorrell. The trial

court detailed the evidence relating to several of those police reports, which included

(1) Krysta violating a civil protection order (“CPO”) that a third-party had against

Krysta; (2) Krysta refusing to return her six-year-old son to his legal custodians after

visitation with Krysta; (3) Krysta screaming and acting in an unruly manner in the

Bellefontaine Police Department lobby, which resulted in Krysta being convicted

of disorderly conduct; (4) Krysta becoming involved in a verbal altercation with the

former judge on the case, Judge Kellogg-Martin, during a prior court proceeding in

the case, with Krysta storming out of the courtroom while Judge Kellogg-Martin

was speaking; (5) Jorrell calling the police for assistance because Krysta would not

leave him alone after he had broken up with her, and Krysta was threatening Jorrell

with a car; (6) an incident where the agency caseworker observed Krysta and

another woman yelling and screaming at each other on the street; (7) a neighbor

reporting that Krysta and Jorrell were in a domestic dispute and that Jorrell had

locked Krysta out of her home; and (8) an incident where Krysta was alleged to have

-13- Case Nos. 8-23-03 and 8-23-04

threatened others with a gun, although no firearm was subsequently located.

Additionally, following the incident where Jorrell called the police because Krysta

would not leave him alone, the trial court noted that Krysta presented herself at the

hospital emergency room the day following that incident with a variety of injuries

and then appeared in court a few days later with a noticeable black eye.

{¶31} The trial court further noted that, while Krysta testified she had only

once been the victim of domestic violence on Jorrell’s part, being a 2019 incident

for which Jorrell was subsequently charged and convicted of domestic violence,

Krysta nonetheless obtained a civil protection order against Jorrell on September

16, 2020 and, in the petition for that CPO, Krysta stated that Jorrell had “physically

and mentally abused her for two years.”

{¶32} Based on that and other evidence, the trial court found:

[T]he mother has continually exposed herself to a potentially dangerous person, to wit: Jorrell * * *, who has a pattern/history of domestic violence or otherwise incriminating behaviors and who has not remedied those behaviors. Further, the mother herself has engaged in many incriminating and/or illegal activities. The Court finds that the relationship between the mother and Jorrell * * * , during the pendency of these cases, continued to be volatile, dangerous and unpredictable for both of them.

(Journal Entry of Judgment, Docket No. 376, Page 10).

{¶33} As to Krysta’s mental health, the trial court found that Krysta had

ongoing mental health issues, having been diagnosed with generalized anxiety

disorder, major depressive disorder, psychophysiological insomnia, and post-

-14- Case Nos. 8-23-03 and 8-23-04

traumatic stress disorder. While Krysta had been in treatment with a mental health

counselor since late 2018, she had also missed a number of sessions. That counselor

testified at the permanent custody hearing that Krysta had made progress with her

counseling and successfully completed the same; however, the counselor also

acknowledged that Krysta did not disclose anything about the domestic violence

concerns to the counselor. That same counselor subsequently began seeing Jorrell

individually, and also seeing Krysta and Jorrell as a couple for marriage counseling,

but yet again both Krysta and Jorrell failed to disclose to the counselor that domestic

violence was an issue between them. Krysta had also been prescribed medication

by a psychiatrist, who did not testify at the hearing, and Krysta admitted that she

had not been compliant with the medication prescribed by the psychiatrist.

{¶34} As found by the trial court, the evidence further established that

throughout the pendency of the cases, Krysta continually tested positive for THC,

notwithstanding the agency caseworker having repeatedly expressed to Krysta that

the case plan required Krysta to refrain from using drugs with mind-altering effects,

including marijuana. While Krysta obtained a medical marijuana card in October of

2021, the trial court noted that Krysta appeared to have been less than honest about

her drug usage, and failed to inform her mental health counselor of her drug use.

Krysta also failed to provide her agency caseworker with information relating to

Krysta’s marijuana use that would have permitted the case worker to assist Krysta

in addressing the agency’s concerns on that issue.

-15- Case Nos. 8-23-03 and 8-23-04

{¶35} With regard to Jorrell, the trial court accurately noted in its written

decision that the case plan required that Jorrell meet with a licensed counselor to

complete a mental health and substance abuse assessment, and to discuss potential

services for anger management, domestic violence counseling, and substance abuse

issues; refrain from using illegal substances; maintain housing for himself and his

child; not engage in illegal activities; display an understanding of domestic violence

and its impact on the family; and show healthy relationship coping skills. The

record reflects that Jorrell failed to meet most of those requirements.

{¶36} While the agency caseworker attempted to work with Jorrell from the

time the case involving his daughter was opened, it was eight months before Jorrell

involved himself with the agency in any meaningful way. After the case involving

G.J. was filed and the child was placed in foster-care, Jorrell visited with G.J. on

multiple occasions during the first 11 months, but also missed a number of other

visitations. While Jorrell was referred by the agency to services for mental health,

employment assistance, housing assistance, and drug counseling, Jorrell did not

engage in counseling services until nearly a year after the case was filed. As to his

ability to provide housing and other necessities for his child, Jorrell testified that he

was employed as a construction worker by his uncle, but Jorrell was unable to

formally confirm that employment and had no income documentation, as Jorrell

claimed to always be paid in cash. Jorrell’s testimony about the hours he worked

and the regularity of his employment was inconsistent and vague. Jorrell testified

-16- Case Nos. 8-23-03 and 8-23-04

that he has eight children and that he takes care of all of them, but the evidence

reflected that he had been found in contempt of court for failure to pay child support

and for failing to appear at child support hearings. Jorrell did complete a domestic

violence program as a condition of community control in his criminal case, but

engaged in no such counseling as it related to the cases here. Like Krysta, Jorrell

obtained a medical marijuana card in the fall of 2021. However, as the trial court

noted, Jorrell testified that his preferred method of using marijuana is smoking,

which is a form of use prohibited under Ohio’s medical marijuana laws. Like

Krysta, Jorrell also continued to use marijuana regularly, notwithstanding the fact

that the caseworker requested Jorrell refrain from the use of mind-altering drugs for

the same reasons that had been communicated to Krysta. Jorrell, like Krysta, never

requested that the case plan be amended to permit medical marijuana usage.

{¶37} As to both parents involved in these cases, an issue of additional

concern to the trial court was that Jorrell was convicted of domestic violence relating

to a September 2019 incident where Krysta was the victim. It was reported that at

the time of the incident, Krysta was pregnant with G.J. and was holding B.M. in her

arms. As a result of being charged in that case, Jorrell had an active no-contact

order with regard to Krysta from September 10, 2019 until November 19, 2020;

however, there were numerous reports and examples of Jorrell having contact with

Krysta during that timeframe. The evidence further established that Jorrell has an

extensive criminal history, including multiple domestic violence convictions and a

-17- Case Nos. 8-23-03 and 8-23-04

felony conviction in 2020 for possession of cocaine that occurred in 2019. Jorrell

testified that he had previously been diagnosed with anger issues, PTSD, and

schizophrenia, but Jorrell did not successfully complete his mental health

counseling as required by the case plan.

{¶38} In the written permanent custody decision in these cases, the trial

judge accurately observed that it was the court’s responsibility to determine the

credibility of the witnesses. The trial court noted it had concerns about the honesty

of both Krysta and Jorrell with regard to key matters in the cases. The trial court

then went on to make very extensive findings about a number of issues on which

Krysta and Jorrell did not seem credible, and why. The trial court ultimately found

that, based on all of the evidence, the two parents had chosen to continue to associate

with each other knowing that the other had a history of negative and even criminal

behaviors that had not been adequately addressed, even though doing so was

detrimental to achieving reunification with the children.

{¶39} As to the two children themselves, the trial court noted that B.M. was

reported to be a calm and loving child. She was well bonded with her foster parents,

whose home was practically the only one she had ever known, and was the home in

which she had learned to walk, talk, and had reached other developmental

milestones. There was also evidence that B.M. was a different child when she

returned from visitations with Krysta, and would begin biting and hitting another

child in the home after those visits. B.M.’s foster parents were foster-to-adopt

-18- Case Nos. 8-23-03 and 8-23-04

parents who had expressed an interest in adopting B.M. G.J. was reported to be

well bonded with her foster parents as well, whose home the child had lived in since

she was three months old. G.J. was described as a strong-willed little girl. As the

trial court accurately noted, the evidence established that both children were healthy

and developmentally on target, living in stable and safe environments, where all

needs were being met by the respective sets of foster parents. The record further

reflects that the agency had investigated relative-placement for both children but

found no family members or other such persons available who were both willing to

take the children and who were in compliance with the requisite placement

standards.

{¶40} Finally, the guardian ad litem of B.M. and G.J. filed a detailed report

and testified at the hearing that granting the agency’s motions for permanent custody

would be in the best interest of the children.

{¶41} Following our own thorough review of the record, we find that those

factual determinations made by the trial court are more than adequately supported

by the evidence presented throughout the permanent custody hearing proceedings.

Further, the facts outlined by the trial court in its written decision constitute clear

and convincing evidence upon which the trial court reasonably relied in determining

that the children’s best interests required that Krysta’s parental rights should be

permanently terminated as to B.M. and that both Krysta’s and Jorrell’s parental

rights should be permanently terminated as to G.J. Both parents failed to comply

-19- Case Nos. 8-23-03 and 8-23-04

with or complete the case plan in significant ways, and both parents appeared to

continually prioritize their own personal desires, individually and as a couple, over

any desire to have the children returned to them in a suitable home environment.

{¶42} On appeal, however, Krysta and Jorrell assert that the domestic

violence concerns were overstated, particularly as the two of them denied any

ongoing domestic violence issues; they claim that the substance abuse concerns

were a “manufactured distraction” because both Krysta and Jorrell had medical

marijuana permits; and they argue that the mental health issues had been

satisfactorily addressed through counseling. Krysta and Jorrell further argue that

the trial court did not give adequate weight to evidence that Krysta was gainfully

employed, had maintained appropriate housing for the children, and was able to

adequately support the children financially.

{¶43} With regard to the argument relating to the domestic violence

concerns, we have already found that the record supports the trial court’s findings

of fact relating to the domestic violence issues, both past and ongoing, between

Jorrell and Krysta. While both Jorrell and Krysta testified that only a single domestic

violence incident had ever occurred between them, the trial court found that

testimony not credible in light of other evidence presented. Both parents also

repeatedly demonstrated a lack of insight as to the significance of their domestic

-20- Case Nos. 8-23-03 and 8-23-04

violence history and displayed a lack of concern about the manner in which the

children could be impacted by those issues.

{¶44} Regarding the use of marijuana by Krysta and Jorrell, it is true that the

record reflects both parents obtained medical marijuana cards during the pendency

of the permanent custody proceedings. Krysta and Jorrell essentially assert that

because their marijuana use after that point was legal under Ohio law, the marijuana

usage should not be held against them in these cases. Krysta and Jorrell also argue

that marijuana use, legal or not, is not a sufficient basis upon which to terminate

parental rights, particularly in the absence of specific evidence that marijuana use

affected the parenting of the children involved.

{¶45} In response to the arguments concerning marijuana, we note that the

termination of the parental rights here was not based solely on Krysta and Jorrell’s

marijuana use. The main concerns in these cases also involved significant mental

health issues as to both parents and a history of domestic violence. Because these

issues were not satisfactorily addressed by either parent, there was a significant

impact to the stability of the home and great risk to the emotional health of the

children. Given the background of Krysta and Jorrell’s struggle with mental health

and the demonstrated history of their volatile, sometimes violent, relationship, the

case plan’s prohibition of marijuana usage – legal or otherwise – was not an

unreasonable restriction. Notwithstanding that fact, instead of working with the

agency to find alternatives to marijuana use or to demonstrate that the couple’s use

-21- Case Nos. 8-23-03 and 8-23-04

of marijuana was, in fact, medically necessary and that no legitimate alternative

treatments were available, both Krysta and Jorrell chose to ignore the agency’s

concerns about marijuana usage and, instead, simply continued their indiscriminate

use of marijuana in violation of the case plan.

{¶46} Finally, we note that the evidence did establish that Krysta (although

not Jorrell) was gainfully employed, had maintained appropriate housing for the

children, and was able to financially support them. However, while Krysta’s success

in those respects is laudable, the children’s best interests here demand more than

simply providing housing and food.

{¶47} Thus, upon considering all relevant factors and remaining mindful that

the trial court’s judgment may have been based upon observing the demeanor of

witnesses and other nuances that do not translate to the written record, we find that

the trial court’s decision regarding permanent custody as to both children was

supported by clear and convincing evidence and, in particular, the trial court did not

err in determining that it was in the best interest of B.M. and G.J. to grant permanent

custody to the agency.

{¶48} Both parents had an ongoing history of erratic, confrontational and

volatile behavior; both parents demonstrated an inability to conduct themselves in

compliance with simple guidelines and rules of law; and both parents displayed a

determination to use a mind-altering controlled substance on a regular basis,

notwithstanding the fact that to do so was in direct contravention of the case plan

-22- Case Nos. 8-23-03 and 8-23-04

objectives. Despite the long history of agency involvement, both Krystal and Jorrell

failed to put key principles of the reunification plan into practice; failed to appreciate

the severity of their abusive relationship and the negative impact such a relationship

has upon children in the same household; and failed to demonstrate an adequate

understanding of goals of the mental health and domestic violence counseling to

which they were referred.

{¶49} Accordingly, for all of the reasons highlighted throughout this opinion,

we are unable to find that the trial court’s decision to grant the motions

for permanent custody was against the manifest weight of the evidence as to either

Krysta or Jorrell.

{¶50} The assignment of error raised by Krysta in both cases and by Jorrell

in the case involving G.J. is therefore overruled.

Conclusion

{¶51} In Case Number 8-23-03, relating to the minor child B.M., having

found no error prejudicial to the mother-appellant, Krysta J., in the particulars

assigned and argued, the judgment of the Logan County Common Pleas Court,

Family Court Division, is affirmed.

{¶52} In Case Number 8-23-04, relating to the minor child G.J., having

found no error prejudicial to the mother-appellant, Krysta J., and also having found

no error prejudicial to the father-appellant, Jorrell J., in the particulars assigned and

-23- Case Nos. 8-23-03 and 8-23-04

argued, the judgment of the Logan County Common Pleas Court, Family Court

Division, is affirmed.

Judgments Affirmed

MILLER, P.J. and WILLAMOWSKI, J., concur.

/jlr

-24-