In re C.J.

2020 Ohio 538

• Court: Ohio Court of Appeals
• Decided: February 18, 2020
• Docket: 5-19-15, 5-19-16, 5-19-17 & 5-19-18
• Status: Published

Opinion

[Cite as In re C.J., 2020-Ohio-538.]

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

IN RE: Co.J., CASE NO. 5-19-15 ADJUDICATED NEGLECTED AND DEPENDENT CHILD. [MONTANA JOHNSON - APPELLANT] OPINION [MICHAEL JOHNSON - APPELLANT]

IN RE: D.J., CASE NO. 5-19-16 ADJUDICATED NEGLECTED AND DEPENDENT CHILD. [MONTANA JOHNSON - APPELLANT] OPINION [MICHAEL JOHNSON - APPELLANT]

IN RE: A.J., CASE NO. 5-19-17 ADJUDICATED NEGLECTED AND DEPENDENT CHILD. [MONTANA JOHNSON - APPELLANT] OPINION [MICHAEL JOHNSON - APPELLANT]

IN RE: Ch.J., CASE NO. 5-19-18 ADJUDICATED DEPENDENT CHILD. [MONTANA JOHNSON - APPELLANT] OPINION [MICHAEL JOHNSON - APPELLANT] Case Nos. 5-19-15, 16, 17, 18

Appeals from Hancock County Common Pleas Court Juvenile Division Trial Court Nos. 20163047, 20163048, 20163049, 20173004

Judgments Affirmed

Date of Decision: February 18, 2020

APPEARANCES:

Timothy J. Hoover for Appellant, Michael Johnson

Angela M. Elliott for Appellant, Montana Johnson

Wesley R. True for Appellee

ZIMMERMAN, J.

{¶1} This is an appeal from the May 17, 2019 decision of the Hancock

County Court of Common Pleas, Juvenile Division, which terminated the parental

rights of appellant, Montana Johnson, mother of Co.J., D.J., A.J. (“Montana”), and

step-mother of Ch.J. (“step-mother”), and appellant, Michael Johnson, father of

Co.J., D.J., A.J. and Ch.J. (“Michael”), and granted permanent custody of their

minor children to Hancock County Department of Job and Family Services (the

“agency”). For the reasons that follow, we affirm.

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{¶2} Montana and Michael filed separate appeals; the appeals were

consolidated. (Case No. 05-19-15, June 14, 2019 JE); (Case No. 05-19-16, June 14,

2019 JE); (Case No. 05-19-17, June 14, 2019 JE); and (05-19-18, June 14, 2019

JE). Montana’s appointed counsel filed a brief in accordance with Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and did not set forth any potential

assignments of error. Michael set forth two assignments of error in his brief.1

Assignment of Error No.1

The trial court’s award of permanent custody of the children, Co.J., D.J. A.J. and Ch.J. to the Hancock County Job and Family Services—Children’s Protective Services Unit was against the manifest weight of the evidence.

Assignment of Error No.2

The Agency’s case planning and efforts were not reasonable and diligent under the circumstances of the case.

Background

{¶3} Ch.J., born in 2003, to her parents, Theresa Johnson (“Theresa”) and

Michael who were married at the time of her birth.2 (May 7, 2019 Tr., Vol. III, at

1 Michael’s second assignment of error in the “Assignments of Error” section of his brief is a variation of what is set out in the “Law and Argument” portion of his brief. (Appellant, Michael’s Brief at 4, 14); See App.R. 16(A)(3), (7). Taking into account that we are to determine appeals on the merits of the assignments of error set forth under App.R. 16, we will review the assignments of error as worded in the “Assignments of Error” portion of this brief and duplicated by the Appellee in its brief. Id.; Id.; (Appellee’s Brief at 2, 4, 16); See also App.R. 12(A)(1)(b); State v. Echols, 2d Dist. Montgomery Nos. 14373, 14457, 14460, 14637, 14639, and 14679, 1995 WL 118025 (Mar. 15, 1995), fn. 1. 2 Four children were born as a result of this union: Ch.J., Al.J., M.J. and B.J. (Case No. 2016 3047, Doc. No. 14); (Case No. 2016 3048, Doc. No. 14); (Case No. 2016 3049, Doc. No. 1); and (Case No. 2017 3004, Doc. No. 8). M.J. and B.J. had reached the age of majority before the agency became involved with the family. (See Michael’s Ex. A). Al.J., born in 2000, was in the temporary custody of the agency (through case number 2017 3003) until she left her foster care placement upon reaching the age of majority. (Case

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406-407). (See Agency Ex. 8). Theresa is now deceased and Michael is married to

Montana. (May 7, 2019 Tr., Vol. III, at 406-407).

{¶4} Co.J., born in 2015, D.J., born in 2014, and A.J., (“An.J.”) born in 2012,

to their parents Michael and Montana. (Id. at 407). (See Agency Ex. 8).

{¶5} On December 23, 2016, the agency filed a complaint alleging Co.J.,

D.J., and An.J. to be neglected and dependent children under R.C. 2151.03(A)(2)

and (3); 2151.04(B) and (C). (Case No. 2016 3047, Doc. No. 1); (Case No. 2016

3048, Doc. No. 1); (Case No. 2016 3049, Doc. No. 1). That same day, the agency

filed a motion requesting that the trial court grant it emergency-temporary custody

to the agency of Co.J., D.J., and An.J., which the trial court granted. (Case No. 2016

3047, Doc. No. 12); (Case No. 2016 3048, Doc. No. 12); and (Case No. 2016 3049,

Doc. No. 12).

{¶6} On January 25, 2017, the agency filed a complaint alleging Ch.J. to be

a neglected, abused, and dependent child under R.C. 2151.03(A)(2) and (3),

2151.031(D), and 2151.04(B), (C), and (D)(1) and (2). (Case No. 2017 3004, Doc.

No. 1). The agency filed a motion requesting temporary custody, which the trial

court granted. (Case No. 2017 3004, Doc. No. 8).

No. 2016 3047, Doc. No. 88); (Case No. 2016 3048, Doc. No. 88); (Case No. 2016 3049, Doc. No. 86); and (Case No. 2017 3004, Doc. No. 84). (Apr. 30, 2019 Tr., Vol. I, at 143). (May 7, 2019 Tr., Vol. III, at 470).

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{¶7} After a hearing on January 27, 2017, the trial court concluded that

probable cause existed to believe that Co.J., D.J., and An.J. were neglected or

dependent children and Ch.J. was a neglected, dependent, or abused child; that it

was in the children’s best interest that the children remain in the temporary custody

of the agency; and that “reasonable efforts to prevent the need for removal of said

children from their home were made in that the agency has been working with the

family and has provided protective supervision on two separate occasions * *

*.” (Emphasis sic.) (Case No. 2016 3047, Doc. No. 15); (Case No. 2016 3048,

Doc. No. 15); (Case No. 2016 3049, Doc. No. 15); and (Case No. 2017 3004, Doc.

No. 8).

{¶8} At the adjudicatory hearing on January 31, 2017, Michael and Montana

admitted that Co.J., D.J., and An.J. were neglected and dependent children under

R.C. 2151.03 and R.C. 2151.04. (Case No. 2016 3047, Doc. No. 16); (Case No.

2016 3048, Doc. No. 16); and (Case No. 2016 3049, Doc. No. 16). Further, the trial

court adjudicated Ch.J., a dependent child under R.C. 2151.04 dismissing the

remaining abuse and neglect allegations contained in that complaint. (Case No.

2017 3004, Doc. No. 9).

{¶9} At the April 24, 2017 dispositional hearing, the trial court ordered that

Co.J., D.J., An.J., and Ch.J. (“the children”) remain in the temporary custody of the

agency and “found reasonable efforts were made by [the agency] to prevent the

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need for removal of said children from their home in that the Agency has been

working with the family and has provided protective supervision, Help Me Grow

services, Century Health services, cleaning supplies, trash bags, and smoke

detectors.”3 (Emphasis sic.) (Case No. 2016 3047, Doc. No. 18); (Case No. 2016

3048, Doc. No. 18); (Case No. 2016 3049, Doc. No. 18); and (Case No. 2017 3004,

Doc. No. 13).

{¶10} On November 20, 2017, the agency filed motions for permanent

custody in each of the children’s cases.4 (Case No. 2016 3047, Doc. No. 27); (Case

No. 2016 3048, Doc. No. 27); (Case No. 2016 3049, Doc. No. 26); and (Case No.

2017 3004, Doc. No. 25). However, the agency withdrew their original motions

for permanent custody and requested two case-plan extensions on May 18, 2018

which the trial court granted on June 14, 2018. (Case No. 2016 3047, Doc. Nos. 56,

58); (Case No. 2016 3048, Doc. Nos. 56, 58); (Case No. 2016 3049, Doc. Nos. 54,

56); and (Case No. 2017 3004, Doc. Nos. 51, 53). However, the agency filed a

second motion for permanent custody on December 17, 2018 in each of the

children’s cases. (Case No. 2016 3047, Doc. No. 71); (Case No. 2016 3048, Doc.

3 Throughout the pendency of the case, the trial court approved the agency’s case plans, which were submitted to the trial court on March 21, 2017, May 8, 2017, February 21, 2018, and February 7, 2019 respectively, and incorporated the case plans into its entries. (Case No. 2016 3047, Doc. Nos. 17, 18, 19, 20, 51, 74, 77); (Case Nos. 2016 3048, Doc. Nos. 17, 18, 19, 20, 51, 74, 77); (Case No. 2016 3049, Doc. Nos. 17, 18, 19, 20, 52, 73, 75); and (Case No. 2017 3004, Doc. Nos. 11, 13, 14, 15, 49, 70, 73). 4 No motion for permanent custody was filed in case number 2017 3003 regarding Al.J. (Case No. 2016 3047, Doc. No. 88); (Case No. 2016 3048, Doc. No. 88); (Case No. 2016 3049, Doc. No. 86); and (Case No. 2017 3004, Doc. No. 84). (Apr. 30, 2019 Tr., Vol. I, at 143). (May 7, 2019 Tr., Vol. III, at 470).

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No. 71); (Case No. 2016 3049, Doc. No. 69); and (Case No. 2017 3004, Doc. No.

66). Michael filed a motion for legal custody on March 4, 2019. (Case No. 2016

3047, Doc. No. 78); (Case No. 2016 3048, Doc. No. 78); (Case No. 2016 3049, Doc.

No. 76); and (Case No. 2017 3004, Doc. No. 74).

{¶11} The trial court appointed the children a Court Appointed Special

Advocate/Guardian Ad Litem (“GAL”) on January 5, 2017. (Case No. 2016 3047,

Doc. No. 6); (Case No. 2016 3048, Doc. No. 6); (Case No. 2016 3049, Doc. No. 6);

and (Case No. 2017 3004, Doc. No. 6). The court sua sponte permitted the

children’s original GAL to withdraw as GAL on October 29, 2018, and she was

subsequently appointed as attorney for Ch.J. (Case No. 2016 3047, Doc. No. 67);

(Case No. 2016 3048, Doc. No. 67); (Case No. 2016 3049, Doc. No. 65); and (Case

No. 2017 3004, Doc. No. 62). Thereafter, the court appointed the children a new

GAL. (Id.); (Id.); (Id.), and (Id.).

{¶12} The new GAL filed a report in the trial court on April 25, 2019

recommending that the trial court grant permanent custody of the children to the

agency, but requested the trial court continue to permit visitation between the

children and the parents at the visitation center. (Case No. 2016 3047, Doc. No.

85); (Case No. 2016 3048, Doc. No. 85); (Case No. 2016 3049, Doc. No. 83); and

(Case No. 2017 3004, Doc. No. 81).

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{¶13} After conducting the permanent-custody hearing on April 30, 2019,

May 1, 2019, and May 7, 2019, the trial court granted permanent custody of the

children to the agency on May 17, 2019. (Case No. 2016 3047, Doc. No. 88); (Case

No. 2016 3048, Doc. No. 88); (Case No. 2016 3049, Doc. No. 86); and (Case No.

2017 3004, Doc. No. 84).

Montana’s Appeal

{¶14} On September 20, 2019, Montana’s appointed counsel filed a request

to withdraw pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396. Counsel asserted

after reviewing the court file, including the transcript of the proceedings, no error

prejudicial to Montana could be argued.

{¶15} The procedure to be followed by appointed counsel who desires to

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well

as State v. Duncan, 57 Ohio App.2d 93 (8th Dist.1978). In re A.M., 8th Dist.

Cuyahoga No. 106789, 2018-Ohio-3186, ¶ 9, citing Anders and Duncan. The

United States Supreme Court found in Anders that “after a conscientious

examination of [the case],” if counsel determined an appeal to be “wholly

frivolous,” counsel “should so advise the court and request permission to

withdraw.” Anders 386 U.S. at 744. In re H.W., 6th Dist. Sandusky No. S-17-043

and S-17-046, 2018-Ohio-523, ¶ 25, citing Anders 386 U.S. at 744. This request

must be accompanied by a brief with references to the record regarding anything

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that might arguably support the appeal. Id.; Id. In addition, counsel must furnish

the client with a copy of the brief and request to withdraw and allow the client

sufficient time to raise any matters the client so chooses. Id. Once these

requirements have been fulfilled, the appellate court must conduct a full

examination of the proceedings held below to decide if the appeal is indeed

frivolous. Id. If the appellate court determines the appeal is frivolous, it may grant

counsel’s request to withdraw and dismiss the appeal without violating

constitutional requirements, or it may proceed to a decision on the merits if required

by state law. Id.

Michael’s Appeal

{¶16} Michael raises two assignments of error. For ease of discussion, we

will address them together.

The trial court’s award of permanent custody of the children, Co.J., D.J. A.[n.]J. and Ch.J. to the Hancock County Job and Family Services—Children’s Protective Services Unit was against the manifest weight of the evidence.

The Agency’s case planning and efforts were not reasonable and diligent under the circumstances of the case.

{¶17} In his assignments of error, Michael argues that the trial court erred in

granting permanent custody of the children to the agency because it was against the

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manifest weight of the evidence, and that the agency failed to make reasonable and

diligent efforts toward reunification.

Standard of Review

{¶18} The right to raise one’s child is a basic and essential right. In re

Murray, 52 Ohio St.3d 155, 157 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651,

92 S.Ct. 1208 (1972) and Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625

(1923). “Parents have a ‘fundamental liberty interest’ in the care, custody, and

management of the child.” Id., quoting Santosky v. Kramer, 455 U.S. 745, 753, 102

S.Ct. 1388 (1982). However, the rights and interests of a natural parent are not

absolute. In re Thomas, 3d Dist. Hancock No. 5-03-08, 2003-Ohio-5885, ¶

7. These rights may be terminated under appropriate circumstances and when the

trial court has met all due process requirements. In re Leveck, 3d Dist. Hancock

Nos. 5-02-52, 5-02-53, and 5-02-54, 2003-Ohio-1269, ¶ 6, citing In re Palmer, 12

Ohio St.3d 194, 196 (1984), cert. denied, 469 U.S. 1162, 105 S.Ct. 918 (1985).

{¶19} When considering a motion for permanent custody of a child, the trial

court must comply with the statutory requirements set forth in R.C. 2151.414. See

In re C.E., 3d Dist. Hancock Nos. 5-09-02 and 5-09-03, 2009-Ohio-6027, ¶ 14. 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. In re S.G., 9th Dist. Wayne No.

15AP0005, 2015-Ohio-2306, ¶ 10. The trial court must find, by clear and

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convincing evidence that: (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. Id. See also In re Brown, 98

Ohio App.3d 337, 343 (3d Dist.1994). R.C. 2151.414(B)(1) provides, in relevant

part, that a trial 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, * * * 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.

***

(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.

R.C. 2151.414(B)(1)(a), (d). “Specifically concerning R.C. 2151.414(B)(1)(a), ‘[i]f

one or more of the factors enumerated in R.C. 2151.414(E) is found to be present

by clear and convincing evidence, the trial court shall find that the child cannot be

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placed with the parents within a reasonable period of time or should not be placed

with the parents.’” In re A.M., 3d Dist. Marion No. 9-14-46, 2015-Ohio-2740, ¶ 13,

quoting In re A.F., 3d Dist. Marion No. 9-11-27, 2012-Ohio-1137, ¶ 54, citing In re

Goodwin, 3d Dist. Shelby No. 17-08-12, 2008-Ohio-5399, ¶ 23.

{¶20} If the trial court makes these statutorily required determinations, a

reviewing court will not reverse a trial court’s decision unless it is not supported by

clear and convincing evidence. In re H.M.K., 3d Dist. Wyandot Nos. 16-12-15 and

16-12-16, 2013-Ohio-4317, ¶ 43, citing In re Meyer, 98 Ohio App.3d 189, 195 (3d

Dist.1994), In re Adoption of Holcomb, 18 Ohio St.3d 361, 368 (1985), and In re

Adoption of Lay, 25 Ohio St.3d 41, 42 (1986). “Clear and convincing evidence is

that which is sufficient to produce in the mind of the trier of fact a firm belief or

conviction as to the facts sought to be established.” In re S.G. at ¶ 10, citing Cross

v. Ledford, 161 Ohio St. 469 (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.” Ledford at

477, citing Ford v. Osborn, 45 Ohio St. 1 (1887), Cole v. McClure, 88 Ohio St. 1

(1913), and Frate v. Rimenik, 155 Ohio St. 11 (1926). If some competent, credible

evidence going to all the essential elements of the case supports the trial court’s

judgment, an appellate court must affirm the judgment and not substitute its

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judgment for that of the trial court. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio

St.2d 279, 280-281 (1978).

{¶21} Moreover, 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 v.

Cleveland, 10 Ohio St.3d 77, 80 (1984). Deferring to the trial court on matters of

credibility is “crucial in a child custody case, where there may be much evidence in

the parties’ demeanor and attitude that does not translate to the record well.” Davis

v. Flickinger, 77 Ohio St.3d 415, 419 (1997).

{¶22} 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.”’

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12, quoting State v.

Thompkins, 78 Ohio St.3d 380, 387 (1997), superseded by statute and rev’d on other

grounds, State v. Smith, 80 Ohio St.3d 80 (1997), quoting Black’s Law Dictionary

1594 (6th ed. 1990).

{¶23} When an appellate court reviews whether a trial court’s permanent

custody decision is against the manifest weight of the evidence, the court

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‘“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 (9th

Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, quoting State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist.1983); accord In re Pittman, 9th Dist. Summit No.

20894, 2002-Ohio-2208, ¶ 23-24.

Analysis

{¶24} “The factors contained within R.C. 2151.414(B)(1)(a)-(e) are

alternative findings, and only one must be met in order for the first prong of the

permanent custody test to be satisfied.” In re S.G., 2015-Ohio-2306, at ¶ 11, citing

In re M.M., 9th Dist. Lorain Nos. 10CA009744, 10CA009745, 10CA009746, and

10CA009747, 2010-Ohio-2278, ¶ 12.

{¶25} In this case, the trial court concluded that R.C. 2151.414(B)(1)(a) and

(d) were applicable. (Case No. 2016 3047, Doc. No. 88); (Case No. 2016 3048,

Doc. No. 88); (Case No. 2016 3049, Doc. No. 86); and (Case No. 2017 3004, Doc.

No. 84). “[T]he findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d)

are alternative findings, [and] each is independently sufficient to use as a basis to

grant the Agency’s motion for permanent custody.” In re M.R., 3d Dist. Defiance

No. 4-12-18, 2013-Ohio-1302, ¶ 80, citing In re Langford Children, 5th Dist. Stark

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No. 2004CA00349, 2005-Ohio-2304, ¶17. Under the plain language of R.C.

2151.414(B)(1)(d), when a child has been in an agency’s temporary custody for 12

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.

{¶26} After reviewing the evidence related to the children’s custody

situations under R.C. 2151.414(B)(1)(d), the record supports that the children had

been in the temporary custody of the agency continuously since their removal in

January 2017. The agency filed its permanent-custody motions on December 17,

2018 with the final hearing taking place on May 7, 2019. Thus, the record is clear

that the children were in the temporary custody of the agency from January 2017

until May 2019 in excess of 12 months in a consecutive 22-month period.

{¶27} Accordingly, based on the evidence presented and because it is

dispositive, we conclude that the trial court’s determinations under R.C.

2151.141(B)(1)(d) are sufficient to satisfy the first prong of the permanent-custody

test and are not against the manifest weight of the evidence.

{¶28} Thus, having satisfied the first prong of the permanent-custody test, we

proceed to the second prong of the test—the trial court’s consideration of the best-

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interest factors. R.C. 2151.414(D) contains the factors for a trial court to consider

when determining whether granting permanent custody to an agency is in the best

interests of a child. It reads as follows:

(D)(1) In determining the best interest of a child at a hearing held pursuant to division (A) of this section or for the purposes of division (A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised Code, the court shall consider all relevant factors, including, but not limited to, the following:

(a) The interaction and interrelationship of the child with the child's parents, siblings, relatives, foster caregivers and out-of-home providers, and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through the child’s guardian ad litem, with due regard for the maturity of the child;

(c) The custodial history of the child, including whether the child has been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a consecutive twenty-two-month period, 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;

(d) The child’s need for a legally secure permanent placement and whether that type of placement can be achieved without a grant of permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply in relation to the parents and child.

R.C. 2151.414(D)(1)(a)-(e).

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{¶29} After reviewing the evidence in the record and determining the

applicability of R.C. 2151.414 (B)(1)(d), the trial court addressed the best interest

factors under R.C. 2151.414(D)(1)(a)-(e), ultimately, concluding by clear and

convincing evidence that it was in the best interest of Co.J., D.J., An.J., and Ch.J.

that the agency be awarded permanent custody.

{¶30} While the trial court did not refer to the subsections under R.C.

2151.414(D)(1)(a)-(e) explicitly, it addressed the evidence upon which it relied in

consideration of the statutory factors and stated that it specifically considered R.C.

2151.144(D)(1)(a)-(e). See In re M.R., 2013-Ohio-1302, at ¶ 78 (“While it is far

from the better practice, we find that the trial court’s citation to the appropriate

statute when making its best interest finding meets its obligation, albeit to the

minimum extent possible, in demonstrating that the R.C. 2151.414(D) factors were

considered.”). In addition, in its judgment entry, the trial court made findings

relevant to the R.C. 2151.414(D) factors. See id., (“Moreover, * * * there is clear

and convincing evidence in the record to support the trial court’s finding that it is in

M.R.’s best interest to grant the Agency’s motion for permanent custody.”).

{¶31} Addressing R.C. 2151.414(D)(1)(a), which concerns the relationships

with the children, the children’s parents, siblings, relatives, and foster-care givers,

the record contains evidence and the trial court noted that neither Michael nor

Montana would engage the younger children during supervised visitations often

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overfeeding them to the point they became ill and had to be reminded to change

soiled diapers. The trial court referenced the credible testimony of children-services

caseworker Rebecca Shumaker (“Shumaker”) relating to the significance of the

bond between the younger and older siblings, the lack of any relationship of the

younger siblings with extended family, Ch.J.’s bond with both Michael and her

extended family, and the younger children’s relationship with their current foster

family.

{¶32} Regarding factor (D)(1)(b), concerning the wishes of the child as

expressed directly or through the recommendation of the GAL, the GAL filed a

report recommending that permanent custody be granted to the agency, but

requested that the trial court permit the parent’s to be able to continue visitations

through the visitation center.

{¶33} Lastly, the trial court discussed factors (D)(1)(c) and (D)(1)(d), which

concerns the children’s custodial history and their need for permanency.

Specifically, the trial court found that the children had been in the temporary

custody of the agency for 12 or more months of a consecutive 22-month period.

{¶34} After reviewing the best-interest factors on appeal, we find that there

is clear and convincing evidence in the record to support the trial court’s

determination that granting permanent custody to the agency was in the best

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interests of the children. Accordingly, the trial court’s decision is not against the

manifest weight of the evidence.

Reasonable Efforts

{¶35} Turning to the Michael’s reasonable-efforts argument, we conclude

that the trial court made the appropriate reasonable-efforts finding.

No one section of the Revised Code addresses the concept of reasonable efforts. Overall, Ohio’s child-welfare laws are designed 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.” R.C. 2151.01(A). To that end, various sections of the Revised Code refer to the agency’s duty to make reasonable efforts to preserve or reunify the family unit.

In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 29. In particular, under R.C.

2151.419, when a trial court

removes a child from the child’s home or continues the removal of a child from the child’s home, the court shall determine whether the public children services agency * * * has 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.

R.C. 2151.419(A)(1). The Supreme Court of Ohio

determined that the trial court is not obligated, under R.C. 2151.419, to make a determination that the agency used reasonable efforts to reunify the family at the time of the permanent custody hearing unless the agency has not established that reasonable efforts have been made prior to the hearing.

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(Emphasis sic.) In re N.R.S., 3d Dist. Crawford Nos. 3-17-07, 3-17-08, and 3-17-

09, 2018-Ohio-125, ¶ 25, citing In re C.F. at ¶ 41, 43 (concluding that the

reasonable-efforts determination under R.C. 2151.419 does not apply to permanent-

custody motions under R.C. 2151.413 or to hearings on such motions under R.C.

2151.414).

According to the Ohio Supreme Court, the trial court is only obligated to make a determination that the agency has made reasonable efforts to reunify the family at “adjudicatory, emergency, detention, and temporary-disposition hearings, and dispositional hearings for abused, neglected, or dependent children, all of which occur prior to a decision transferring permanent custody to the state.”

In re B.S., 3d Dist. Allen No. 1-15-44, 2015-Ohio-4805, ¶ 36, quoting In re C.F. at

¶ 41.

{¶36} Because the trial court made its reasonable-efforts finding when it

granted emergency custody to the agency by ex-parte order as well as at the time of

the probable-cause and dispositional hearings, the trial court was not required to

make any further reasonable-efforts findings. (See Case No. 2016 3047, Doc. Nos.

15, 18); (Case No. 2016 3048, Doc. Nos. 15, 18); (Case No. 2016 3049, Doc. Nos.

15, 18); and (Case No. 2017 3004, Doc. Nos. 8, 13); In re S.D., 9th Dist. Lorain

Nos. 15CA010864 and 15CA010867, 2016-Ohio-1493, ¶ 25. Stated another way,

because the trial court previously made the requisite R.C. 2151.419 “reasonable

efforts” findings, it was not required to again make those findings at the hearing on

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the agency’s motion for permanent custody filed under R.C. 2151.413. See In re

C.F. at ¶ 43.

{¶37} Here, the trial court specifically concluded that the agency had made

“reasonable efforts * * * to prevent the need for removal of said children from their

home * * *.” (Emphasis sic.) (Case No. 2016 3047, Doc. No. 18); (Case No. 2016

3048, Doc. No. 18); (Case No. 2016 3049, Doc. No. 18); and (Case No. 2017 3004,

Doc. No. 13). In addition to the requirement under R.C. 2151.419(A)(1) that the

trial court determine whether the agency made reasonable efforts to preserve or

reunify the family unit, R.C. 2151.419(A)(1) further provides:

If the agency removed the child from home during an emergency in which the child could not safely remain at home and the agency did not have prior contact with the child, the court is not prohibited, solely because the agency did not make reasonable efforts during the emergency to prevent the removal of the child, from determining that the agency made those reasonable efforts. In determining whether reasonable efforts were made, the child’s health and safety shall be paramount.

R.C. 2151.419(A)(1).

{¶38} The trial court’s reasonable-efforts finding is supported by clear and

convincing evidence in the record. The record reveals that the parents had worked

with the children’s services agency since 2013 regarding their issues in parenting

their children. (See May 7, 2019 Tr., Vol. III, at 402-404).

{¶39} For these reasons, we conclude that the trial court’s reasonable-efforts

finding does not run afoul of the requirements of R.C. 2151.419(A)(1). That is, the

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trial court correctly identified that Co.J., D.J., An.J., and Ch.J. were removed from

their home during an emergency in which they could not safely remain in the home.

Thus, based on the facts and circumstances of these cases, Co.J., D.J., An.J., and

Ch.J.’s health and safety were paramount to any service that Michael argues that the

agency could have afforded to him. See In re K.M.S., 3d Dist. Marion Nos. 9-15-

37, 9-15-38, and 9-15-39, 2017-Ohio-142, ¶ 68 (“‘Nevertheless, the issue is not

whether there was anything more that [the agency] could have done, but whether

the [agency’s] case planning and efforts were reasonable and diligent under the

circumstances of this case.’”), quoting In re Leveck, 2003-Ohio-1269, at ¶ 10.

{¶40} Accordingly, we conclude that the trial court did not err by granting

permanent custody of Co.J., D.J., An.J., and Ch.J. to the agency. Therefore,

Michael’s assignments of error are overruled.

{¶41} Moreover, upon this Court’s full examination of the record, we agree

that there are no non-frivolous appealable issues in this case. Penson v. Ohio, 488

U.S. 75, 80, 109 S.Ct. 349, 35 (1988), (“Only after this separate inquiry, and only

after the appellate court finds no nonfrivolous issue for appeal [i.e., arguable issues],

may the court proceed to consider the appeal on the merits without the assistance of

counsel.”).

{¶42} Having reviewed the entire record and having found that no arguably

meritorious issues exists, this Court concludes that Montana’s appeal is wholly

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frivolous under Anders. Consequently, Montana’s appointed counsel’s motion to

withdraw is well-taken.

{¶43} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgments of the trial court.

SHAW, P.J. and WILLAMOWSKI, J., concur.

/jlr

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