In re B.M.

2025 Ohio 1786

Opinion

[Cite as In re B.M., 2025-Ohio-1786.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Craig R. Baldwin, P.J. B.M. (DOB: 3/31/14) : Hon. Robert G. Montgomery, J. C.M. (DOB: 12/8/15) : Hon. David M. Gormley, J. P.-J.M. (DOB: 7/15/21) : D.M. (DOB: 1/3/23) : Case Nos. : 2024 CA 0023 : 2024 CA 0024 : 2024 CA 0025 : 2024 CA 0026 : : OPINION : : : :

CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case Nos. 20233002, 20233003, 20233004, 20233005

JUDGMENT: Affirmed

DATE OF JUDGMENT: May 19, 2025

APPEARANCES: For Coshocton County Job & For Appellee – Guardian Ad Family Services Litem

Katelynn R. Davis Jeanette M. Moll Assistant Prosecuting Attorney 45 North 4th Street 318 Chestnut St. Zanesville, Ohio 43702 Coshocton, Ohio 43812

For Appellant – Father For Mother

Richard D. Hixson Diana E. Dudgeon 3808 James Court, Suite 2 141 Front Avenue SE, P.O. Box 133 Zanesville, Ohio 43701 New Philadelphia, Ohio 44663 Gormley, J.

{¶1} Appellant father challenges the judgment of the Coshocton County Juvenile

Court awarding permanent custody of four of his children, B.M., C.M., P.-J.M., and D.M.,

to the Coshocton County Department of Job and Family Services (the “Agency”). He

contends that the trial court relied on improper statutory provisions at the permanent-

custody hearing, that the trial court’s judgment was unsupported by the evidence

introduced at that hearing, and that the trial court failed to follow federal law. We find

otherwise and now affirm.

The Basic Facts

{¶2} Father is the parent of B.M., C.M., P.-J.M., and D.M. Mother is the parent

of P.-J.M. and D.M. A separate woman who is uninvolved in this appeal, M.E., is the

parent of A.E., B.M., and C.M (the “Girls”). The father of A.E. is unknown. A.E., B.M.,

C.M., P.-J.M., and D.M. (the “Children”) lived together with mother and father. Mother

and father are also the parents of A.M. and M.M. (the “Twins”). The Twins and A.E. are

not directly involved in this appeal.

{¶3} In March 2023, the Agency was awarded temporary custody of the Children

after the Children were adjudicated “dependent” under R.C. 2151.04(C). A voluntary case

plan was filed by the Agency the same month, and the Children were placed with their

paternal grandparents.

{¶4} Less than two months later, the Children were removed from that placement

because the Agency received reports describing emotional and physical abuse, neglect,

and domestic violence between the grandparents, as well as unauthorized visits by

mother and father. {¶5} The Girls were then placed with their paternal aunt and uncle, and P.-J.M.

and D.M. were placed in a licensed foster home. Within four months of those placements,

the Children again were moved into new homes. The Girls were placed together with

Derek and Victoria Burke, and P.-J.M. and D.M. were placed together in the home of John

and Bethany Yoder.

{¶6} P.-J.M. and D.M. have remained together in their placement with the Yoders

since June 2023, and the Girls have remained together in their placement with the Burkes

since September 2023.

{¶7} In January 2024, the Twins were born. The Agency, that same day, moved

for and was granted emergency temporary custody of the Twins. At the subsequent

temporary-custody hearing, the trial judge — noting the physical challenges, neglect, and

emotional trauma experienced by the Children — adjudicated the Twins “dependent”

under R.C. 2151.04(C). The Twins were placed in a foster home with Brandon and

Brenda Troyer, where they have remained since.

{¶8} In May 2024 — more than one year after the Children were first placed in

the Agency’s temporary custody — the Children’s guardian ad litem filed a motion in the

trial court, under R.C. 2151.414, requesting that permanent custody of the Children and

the Twins be awarded to the Agency. The Agency consented to that permanent-custody

motion and appeared at the full hearing.

{¶9} Immediately prior to the permanent-custody hearing, M.E. voluntarily and

permanently surrendered her parental rights over the Girls. After the hearing concluded,

the trial judge granted permanent custody of the Children to the Agency, but he declined to grant the Agency permanent custody of the Twins. Father now appeals the permanent-

custody judgment for B.M., C.M., P.-J.M., and D.M only. Mother did not appeal.

R.C. 2151.414 Governs Permanent-Custody Motions Filed by A Guardian Ad Litem

{¶10} In his first assignment of error, father argues that the trial court was not

permitted to hold a permanent-custody hearing under R.C. 2151.414 because the

underlying motion for permanent custody here was filed by a guardian ad litem rather

than by a children services agency. He contends that R.C. 2151.353(A)(4) — which lacks

the statutory provisions relied upon by the trial court in its judgment below — governs this

case.

{¶11} The Supreme Court of Ohio, in In re C.T., 2008-Ohio-4570, ¶ 19,

recognized “that a guardian ad litem has authority. . . to file and prosecute a motion to

terminate parental rights and award permanent custody.” In that case, the Court

concluded that two separate provisions of the Revised Code allow a guardian ad litem to

file permanent-custody motions: R.C. 2151.281(I) and R.C. 2151.415(F).

{¶12} R.C. 2151.281(I) provides guardians ad litem with a general grant of

authority to act in the best interest of children. It provides that the guardian ad litem of a

child that is alleged to be dependent “shall perform whatever functions are necessary to

protect the best interest of the child . . . and shall file any motions and other court papers

that are in the best interest of the child in accordance with rules adopted by the supreme

court.” Id.

{¶13} R.C. 2151.415(F) specifically empowers a guardian ad litem to file

permanent-custody motions. That section states that “[t]he court, on its own motion or

the motion of the agency or person with legal custody of the child, the child’s guardian ad litem, or any other party to the action, may conduct a hearing . . . to determine . . . whether

any other dispositional order set forth in divisions (A)(1) to (5) of this section should be

issued.” (Emphasis added.) Id.

{¶14} R.C. 2151.415(A), in turn, states that “a public children services agency or

private child placing agency that has been given temporary custody of a child . . . shall

file a motion with the court that issued the order of disposition requesting that any of the

following orders of disposition of the child be issued by the court.” “An order permanently

terminating the parental rights of the child’s parents” is one of the five enumerated

dispositional orders. R.C. 2151.415(A)(4).

{¶15} To be sure, in its recital of who may file motions for dispositional orders,

R.C. 2151.415(A) references only “a public children services agency or private child

placing agency that has been given temporary custody of a child.” The Supreme Court

has already found, though, that that statutory provision does not limit the ability of others

to pursue child-placement orders. See In re C.T., 2008-Ohio-4570, at ¶ 18 (“Although

those statutes [R.C. 2151.413, 2151.414, and 2151.415] refer to motions filed by a public

children services agency or a private child placing agency, there is no language that

mandates that only an agency may file for permanent custody”). R.C. 2151.415(F),

moreover, explicitly provides that such motions may be filed by the court, the agency with

legal custody of the child, the child’s guardian ad litem, or any other party to the action.

{¶16} Under R.C. 2151.415(B), a dispositional order that permanently terminates

parental rights must be conducted “in accordance with sections 2151.413 and 2151.414

of the Revised Code.” We therefore conclude that a permanent-custody motion that is

filed by a guardian ad litem is governed by R.C. 2151.414. See In re A.T., 2020-Ohio- 2781, ¶ 22 (3d Dist.) (reviewing permanent-custody adjudication for R.C. 2151.414

factors when permanent-custody motion was filed by a guardian ad litem).

{¶17} We are unpersuaded by father’s interpretation of Ohio law. The trial court

correctly conducted the permanent-custody hearing under R.C. 2151.414. Father’s first

assignment of error is overruled.

The Evidence Supports the Trial Court’s Permanent-Custody Adjudication

{¶18} In his second and third assignments of error, father challenges the merits

of the trial judge’s permanent-custody adjudication on grounds of weight and sufficiency.

{¶19} We note that the manifest-weight-of-the-evidence and sufficiency-of-the-

evidence standards — rather than an abuse-of-discretion standard — are the proper

appellate rubrics that we must use when reviewing the evidence in permanent-custody

appeals. In re Z.C., 2023-Ohio-4703, ¶ 18.

{¶20} “In determining whether a [judgment] is against the manifest weight of the

evidence, the court of appeals functions as the ‘thirteenth juror,’ and after ‘reviewing the

entire record, weighs the evidence and all reasonable inferences, considers the credibility

of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.’” State v. Hane, 2025-Ohio-120, ¶ 20 (5th Dist.),

quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997).

{¶21} “In weighing the evidence, the court of appeals must always be mindful of

the presumption in favor of the finder of fact.” State v. Butler, 2024-Ohio-4651, ¶ 75 (5th

Dist.). “‘The underlying rationale of giving deference to the findings of the trial court rests

with the knowledge that the [trial judge] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing

the credibility of the proffered testimony.’” State v. Williams, 2024-Ohio-5578, ¶ 61 (5th

Dist.), quoting Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80 (1984).

“[A]n appellate court will defer to the finder of fact on issues of weight and credibility of

evidence, as long as a rational basis exists in the record for its decision.” Hutson v.

Meyers, 2022-Ohio-1622, ¶ 23 (5th Dist.), citing State v. Ricer, 2018-Ohio-426, ¶ 12 (5th

Dist.).

{¶22} “Our standard of reviewing the sufficiency of the evidence in a civil case is

whether, after viewing the evidence in a light most favorable to the prevailing party, the

judgment is supported by competent and credible evidence.” Kerbler v. Biltwell

Contracting LLC, 2024-Ohio-5607, ¶ 73 (5th Dist.), citing Moran v. Gaskella, 2012-Ohio-

1158, ¶ 12 (5th Dist.). A judgment “will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.” State

v. Dennis, 79 Ohio St.3d 421, 430 (1997).

A. The Statutory Framework of R.C. 2151.414

{¶23} A trial court “may grant permanent custody of a child to a movant if the court

determines . . . by clear and convincing evidence, that it is in the best interest of the child

to grant permanent custody of the child to the agency” and that any one of the five factors

enumerated in R.C. 2151.414(B)(1)(a) through (e) applies. R.C. 2151.414(B)(1). R.C.

2151.414(B), therefore, “establishes a two-pronged analysis.” Matter of K.H., 2025-Ohio-

21, ¶ 30 (5th Dist.). “In practice, the trial court will usually determine whether one of the

. . . circumstances delineated in R.C. 2151.414(B)(1)(a) through [(e)] is present before

proceeding to a determination regarding the best interest of the child.” Id. {¶24} Clear and convincing evidence is evidence “‘which will produce in the mind

of the trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 26, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus. “‘Where the proof required 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.’” Z.C., 2023-Ohio-4703, at ¶ 8, quoting State v.

Schiebel, 55 Ohio St.3d 71, 74 (1990).

B. Prong One: The Prerequisite For a Best-Interest Analysis

{¶25} R.C. 2151.414(B)(1) lists five scenarios, any one of which can serve as a

prerequisite for a trial court’s consideration of a permanent-custody request. The trial

judge here found that R.C. 2151.414(B)(1)(d) applied to the Children. “As long as one of

these factors is present, then the first prong of the test is satisfied.” Matter of A.S., 2024-

Ohio-2099, ¶ 36 (5th Dist.).

{¶26} R.C. 2151.414(B)(1)(d) is met when “[t]he 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.”

C. Prong Two: The Best-Interest Analysis

{¶27} In determining whether granting permanent custody of a child to an agency

is in that child’s best interest, the trial judge must consider all relevant factors, including,

but not limited to, those listed in R.C. 2151.414(D)(1).

{¶28} Those factors include the child’s interactions and relationships with the

child’s family members and persons who may significantly affect the child, the wishes of

the child (with due regard to the maturity of the child), the custodial history of the child, the child’s need for a legally secure placement, and whether that type of placement can

be achieved without a grant of permanent custody to the agency.

{¶29} “A child’s best interests are served when the child is placed in a permanent

situation which fosters growth, stability, and security.” In re M.K., 2023-Ohio-3786, ¶ 36

(5th Dist.). “‘The discretion which the juvenile court enjoys in determining whether an

order of permanent custody is in the best interest of a child should be accorded the utmost

respect, given the nature of the proceeding and the impact the court’s determination will

have on the lives of the parties concerned.’” Id., quoting In re E.H., 2022-Ohio-1682, ¶

101 (5th Dist.).

D. The Trial Court Correctly Determined That R.C. 2151.414(B)(1)(d) Applies

{¶30} “This Court has adopted the position that proof of temporary custody with

an agency for twelve or more months of a consecutive twenty-two-month period alone is

sufficient to award permanent custody.” In re D.B., 2024-Ohio-1872, ¶ 63 (5th Dist.),

citing Matter of O.M., 2021-Ohio-1310, ¶ 33 (5th Dist.).

{¶31} Katie Barnett, a caseworker at the Agency assigned to work with the

Children, testified at the permanent-custody hearing about the history of the Children’s

temporary-custody placements. She testified that the Children were adjudicated as

dependent and placed into the Agency’s temporary custody in March of 2023, and a copy

of the trial court’s temporary-custody judgment entry was admitted into evidence. She

also testified that the Children had remained in the temporary custody of the Agency for

more than 12 of the 22 months preceding the permanent-custody hearing.

{¶32} This unchallenged evidence clearly and convincingly shows that R.C.

2151.414(B)(1)(d) was met. E. The Trial Court Correctly Determined That Awarding Permanent Custody to the Agency Was in the Children’s Best Interest

{¶33} Having found that R.C. 2151.414(B)(1)(d) was met, we now turn to the trial

court’s best-interest-of-the-child analysis. We find clear and convincing evidence in the

record that granting permanent custody of the Children to the Agency was in the

Children’s best interest.

{¶34} The evidence at the permanent-custody hearing established that placement

with mother and father would not be in the Children’s best interest. Testimony was

introduced that mother and father fell out of contact with the Agency, failed to regularly

attend substance-abuse treatment and parental-education classes, and failed to make

substantial progress on their case plans. Mother tested positive for methamphetamine

— while pregnant with the Twins — at a time when she was supposed to be complying

with a case plan that called for her to refrain from the use of illegal drugs. Father also

tested positive for methamphetamine while his case plan was in effect, and he threatened

to kill one of the caseworkers employed by the Agency.

{¶35} Substantial evidence of abuse and neglect was also introduced at the

permanent-custody hearing. Throughout the period of temporary custody, the Girls

repeatedly stated that they did not want to live with mother. Each of them stated that they

were afraid of living with mother, and they described instances when mother threatened

to slit their throats as well as times when mother locked them outside of the home during

cold winter nights. The Girls identified mother as an unsafe person and reported being

afraid of living in the same home as her. The Girls also reported being forced to sleep

together in a closet because their beds were infested with bedbugs. Father, too, wrote a

police statement — after a domestic dispute with mother — indicating that mother had threatened to stab him and the Children in their sleep. Father later told a caseworker

from the Agency that he did not believe that P.-J.M. was safe in the home with mother.

Father, however, continues to live with mother.

{¶36} The evidence at the permanent-custody hearing also established that the

Children are closely bonded to their foster families. Bethany Yoder, the foster mom of P.-

J.M. and D.M., testified that P.-J.M. was bonded with her, her husband, and the rest of

her extended family. She stated that P.-J.M.’s needs were being satisfied, and that P.-

J.M. was meeting all of her developmental milestones. Bethany also testified that D.M.

— who was born with infantile nystagmus that is suspected to have been caused by

mother’s drug use while pregnant — is being taken to all of his medical and physical-

therapy appointments, that he had a corrective surgery performed in April 2024, and that

he is otherwise meeting all of his developmental milestones. Bethany concluded her

testimony by stating that she and her husband are closely bonded to P.-J.M. and D.M.,

that those two caregivers are willing and able to permanently provide for P.-J.M. and

D.M.’s needs, and that they intend to pursue adoption.

{¶37} Victoria Burke, the foster mom of the Girls, testified that she is close with

the Girls and that the Girls have become strongly attached to her and her husband. She

stated that, since being placed into temporary custody with her and her husband, B.M.

and C.M.’s grades in reading and math have doubled, and the Girls have opened up

about the experiences that they had while living with mother and father. She reported

that the Girls have joined extracurricular organizations for cheerleading and basketball,

and she testified that the Girls’ teachers have described a significant improvement in the

Girls’ behavior at school. The Girls all reported to the Agency that they wished to remain with Derek and Victoria Burke, and the Burkes have expressed their intent to adopt the

Girls.

{¶38} At the conclusion of the hearing, the guardian ad litem testified that a

permanent-custody grant would be in the Children’s best interest, given mother and

father’s inability to care for the Children, together with the stability that the Children have

found in their new placements.

{¶39} After carefully reviewing the record, we conclude that sufficient evidence

was introduced showing that the best-interest factors favor granting permanent custody

of the Children to the Agency, and the weight of that evidence, too, strongly favors a grant

of permanent custody. Because both prongs of the permanent-custody test have been

proven in this case, the trial judge properly terminated mother and father’s parental rights

and placed the Children in the permanent custody of the Agency. Father’s second and

third assignments of error are overruled.

The Trial Judge’s Alleged Violation of The Indian Child Welfare Act Does Not Rise to The Level of Plain Error

{¶40} In his final assignment of error, father argues that the trial court violated the

Indian Child Welfare Act (the “ICWA”) by not asking if any of the children were members

of a federally recognized Indian tribe.

{¶41} “The Indian Child Welfare Act was enacted ‘for the protection and

preservation of Indian tribes and their resources.’” In re K.Y., 2025-Ohio-1117, ¶ 33 (5th

Dist.), quoting 25 U.S.C. 1901(2). Under the ICWA, “state courts are required to ‘ask

each participant in an emergency or voluntary or involuntary child-custody proceeding

whether the participant knows or has reason to know that the child is an Indian child. The

inquiry is made at the commencement of the proceeding and all responses should be on the record.’” Id., quoting 25 C.F.R. 23.107(a). The failure of a state court to identify

children covered by the ICWA “‘can nullify court proceedings that have not been

conducted in accordance with the Act.’” Id., quoting In re L.M., 2024-Ohio-5549, ¶ 13

(12th Dist.). A child is covered by the ICWA if that child is unmarried and “under age

eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in

an Indian tribe and is the biological child of a member of an Indian tribe[.]” 25 U.S.C.

1903(4).

{¶42} The failure of a parent to raise an ICWA objection at the trial court forfeits

all but plain error. In re K.Y. at ¶ 34. In civil cases, plain error “may be applied only in the

extremely rare case involving exceptional circumstances where error, to which no

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 (1997),

syllabus.

{¶43} At the permanent-custody hearing, the trial judge did not ask whether any

of the Children were covered by the ICWA. Father did not, however, raise an ICWA

objection in the trial court, and he therefore must demonstrate that the judge’s failure to

ask about the ICWA rises to the level of plain error. Father does not point to any evidence

in the record, or even allege, that any of the Children are covered by the ICWA. Moreover,

we note that mother and father’s case plans — which were filed in the trial court and are

contained in the record — explicitly state that none of the Children fall within the ICWA’s

definition of an Indian child. Father had access to those case plans for months and had

an opportunity to challenge the ICWA findings at the permanent-custody hearing. {¶44} We do not view this case as one of “those extremely rare cases where” civil

plain error applies. Goldfuss at 121. See also Matter of R.M., 2025-Ohio-1421, ¶ 35 (5th

Dist.) (finding no plain error in a trial judge’s failure to make an ICWA inquiry where parent

failed to raise an ICWA objection in trial court). Father’s final assignment of error is

overruled, and the trial court’s judgment is affirmed.

By: Gormley, J.

Baldwin, P.J. and

Montgomery, J. concur.