In re D.A.

2024 Ohio 1416

• Court: Ohio Court of Appeals
• Decided: April 10, 2024
• Docket: 23CA25
• Status: Published

Opinion

[Cite as In re D.A., 2024-Ohio-1416.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

In Re: J.C. : Case No. 23CA25 B.A. A.C. : DECISION AND C.C. JUDGMENT ENTRY D.A. :

Adjudicated Dependent : RELEASED 4/10/2024 Children ______________________________________________________________________ APPEARANCES:

Christopher Bazeley, Cincinnati, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney and Timothy L. Warren, Assistant Athens County Prosecutor, Athens, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} The underlying juvenile case involved five children and four parents, two

mothers and two fathers. This appeal involves only the mother of J.C., A.C., C.C., and

D.A. and her four children. Mother appeals the judgment of the Athens County Court of

Common Pleas, Juvenile Division, granting permanent custody of these four children to

the Athens County Children Services (the “Agency”). The mother assigns one error

asserting that the permanent custody award was against the manifest weight of the

evidence. For the reasons which follow, we overrule her assignment of error and affirm

the juvenile court’s judgment.

I. FACTS AND PROCEDURAL HISTORY

{¶2} Because mother, Samantha, and her four children are the subjects of this

appeal, factual and procedural matters related to the fathers, the other child, B.A., and Athens App. No. 23CA25 2

B.A.’s mother, Rita, will be discussed only when relevant to the appeal. Thomas is the

father of three of Samantha’s children (J.C., A.C., and C.C.) and Brandon is allegedly the

father of one (D.A.). Brandon is also the father of Rita’s child, B.A.. At the time the

complaint was filed, Samantha and Brandon were living together with all five children.

{¶3} On November 12, 2021, the Agency filed a complaint alleging that the

children, ranging from ten years old to four years old, were neglected and dependent. The

complaint alleged that Brandon and Samantha lived together with all five children. B.A.

had been placed in the care of his father Brandon because B.A. and his two other siblings

(Rita’s other two children who were not part of this case) were the subject of another

juvenile case in which Rita was found to have substance abuse issues. Samantha and

Brandon were alleged to have a history with the Agency since 2013, due to lack of

supervision, educational and medical neglect, unsanitary conditions of the home, and

substance use issues which affected their ability to care for the children. Thomas (father

of J.C., A.C., and C.C.) was incarcerated at the time the complaint was filed and had

pending charges in five criminal cases, including drug offenses, and was allegedly

uninvolved with his children. Brandon had not established paternity of D.A., the child he

allegedly fathered with Samantha. The Agency alleged that Brandon and Samantha failed

to ensure the children attended school regularly. The children were alleged to have

behavioral issues that escalated into multiple episodes of physical aggression with their

peers and school staff. The Agency alleged that Brandon and Samantha tested positive

for marijuana, cocaine, and oxycodone on October 27, 2021, approximately two weeks

before the complaint was filed. The Agency also filed a motion for temporary custody of Athens App. No. 23CA25 3

the children. A hearing on the complaint was set for an adjudicatory hearing December

14, 2021.

{¶4} On December 2, 2021, the Agency sought an emergency ex parte order for

custody of the children. The magistrate conducted a hearing on the emergency motion

on December 3, 2021 and the juvenile court adopted the magistrate’s decision and

granted emergency custody to the Agency. The Agency submitted an affidavit in support

of emergency custody stating that on December 1, several of the children came to school

with bruises and head and facial injuries inflicted upon them by Brandon. Brandon also

choked the children “to the point that their feet don’t touch the floor.” Brandon and

Samantha tested positive for oxycodone, cocaine, benzodiazepines, and marijuana on

November 19, 2021. The children also reported that Brandon and Samantha told them

that they are taking them “on vacation soon.”

{¶5} The juvenile court held an adjudicatory hearing on January 25, 2022. Rita

and Thomas did not attend. Samantha and Brandon attended and stipulated to an

adjudication of dependency. The Agency dismissed the allegations of neglect. The trial

court found that the children were dependent and granted temporary custody of them to

the Agency. Reunification was the plan objective, and the juvenile court incorporated the

case plan and all amendments filed previously in the matter. The court set the matter for

a review hearing and a hearing on the placement of one or more of the children in a

qualified residential treatment program (“QRTP”) for March 15, 2022. Several of the

children were placed in a QRTP following the March 2022 hearing. Additional review

hearings were conducted throughout 2022 and the children were ordered to remain in the

temporary custody of the Agency. Athens App. No. 23CA25 4

{¶6} On December 20, 2022, the Agency sought permanent custody of the

children and an order terminating all parenting rights of Samantha, Brandon, Rita, and

Thomas. The Agency contended that the children had been in the Agency’s temporary

custody for 12 or more months of a consecutive 22-month period and it was in the best

interest of the children to be placed in the permanent custody of the Agency. The Agency

alleged that Samantha failed to comply with the case plan, tested positive for marijuana

and oxycodone within the past four weeks, engaged in mental health services

inconsistently and without benefit, and failed to benefit from parenting education. Brandon

was alleged to have repeatedly tested positive for cocaine and oxycodone, failed to

benefit from mental health services, and failed to benefit from parenting education. Rita

was alleged to have two other children in the temporary custody of the Agency and to

have failed to visit or communicate with B.A. in over 90 days. Thomas allegedly failed to

communicate or visit with his children (J.C., A.C., and C.C.) since before their temporary

placement with the Agency.

{¶7} The permanent custody hearing was held over the course of several dates

in March, May, and August 2023. However, in June 2023, new allegations of sexual abuse

by Brandon against C.C. arose and the Agency requested an amendment to the case

plan to suspend all visitation between Brandon and Samantha and all their children.

Samantha and Brandon objected to the visitation suspension on the ground that it would

be unfair to suspend both parents’ visitations with all children when the abuse allegation

involved only one of the parents and one of the children. The juvenile court held a hearing

on the objection to the visitation suspension in June 2023. The Agency argued that it

believed suspension of visitation by both parents with all children was necessary during Athens App. No. 23CA25 5

the investigation because both parents had a history of discouraging their children to be

forthcoming with statements to investigators. The Agency was concerned that the parents

would coach or prep all of the children’s testimony to investigators and would tell the

children that they would be “in trouble for telling.” The trial court adopted the Agency’s

modified visitation and found that both parents’ visitation would be suspended pending

the investigation, but also encouraged the Agency to get the investigative interviews done

quickly. “I’m urging the agency and telling the agency more than just urging that they need

to have them [the interviews] ASAP because if visitations are appropriate they need to

resume ASAP * * *.” The investigation concluded and it was determined that the abuse

allegation was unsubstantiated and there was no basis for pursuing criminal charges.

{¶8} On the first day of the permanent custody hearing in March 2023, the

Agency presented Bridget Lemberg, a lab director and toxicologist at Forensic Fluids

Laboratories, who testified that she analyzed Samantha’s drug screens over a 3-year

period and 21 of the screens were positive for marijuana, oxycodone, and hydrocodone.

Only one of Samantha’s drug screens was negative, which occurred in May 2020. Her

most recent screening was on March 6, 2023, about three weeks before the hearing, and

was positive for marijuana and oxycodone. Morgan Yoho testified that she was employed

with the Agency and supervises visitation and administers drug screens. Yoho testified

that she collected a drug screen from Samantha on June 7, 2022, which tested positive

for opiates, hydrocodone, and oxycodone and that Samantha did not have a prescription

for those medications.

{¶9} On the second day of the hearing in May 2023, Chelsie McDaniel testified

that she was employed by the Agency as a family support worker and visitation Athens App. No. 23CA25 6

supervisor. McDaniel testified that she supervised six visitations with the family.

Samantha and Brandon’s visitation schedule with the children was Tuesdays from 4 to 6

p.m. and Thursdays from 5 to 7 p.m. McDaniel recalled that B.A., D.A., and J.C. were

present for visitation, either in person or virtually, but she does not believe she ever

supervised a visitation involving A.C. or C.C. McDaniel testified the visitations she has

supervised between Samantha and the children “go pretty well.” “Samantha and Brandon

both go play basketball with them, and they throw the football. I feel like they go pretty

well.” McDaniel testified that she collected a drug screen from Samantha on September

6, 2022, which tested positive for marijuana and Samantha did not have any prescription

medications at the time.

{¶10} Glen Driggs testified that he was employed by the Agency as a case aid

and his duties included collecting drug screens. Driggs collected drug screens from

Samantha on March 6, 2023, which was positive for marijuana and oxycodone, on

January 17, 2023, which was positive for marijuana, hydrocodone, and oxycodone, on

December 20, 2022, which was positive for marijuana and oxycodone, on November 15,

2022, which was positive for marijuana and oxycodone, and on October 31, 2022, which

was positive for marijuana. Samantha’s only prescription medication was Lexapro during

November and December 2022.

{¶11} Lainey Bartolovich testified that she is an employee at Fox Run, a

residential mental health center facility for children and adolescents. Bartolovich was the

case manager for C.C. and had access to her records. C.C. had already been placed at

Fox Run when Bartolovich started working with her in October 2022 on trauma, abuse,

neglect, and anger management. C.C. has never mentioned any abuse by her mother, Athens App. No. 23CA25 7

Samantha, but has mentioned physical abuse from Brandon. C.C. has stated that she is

concerned about her mother being hurt by Brandon and that C.C. does not want to be in

a home with Brandon. C.C. has been doing well while at Fox Run and has improved since

she first arrived there. Samantha has visited one or two times since Bartolovich has been

working with C.C., but the issue has been with transportation to Fox Run. Additionally,

Samantha and C.C. participate in telephone and Zoom calls, which have been fairly

consistent.

{¶12} Hannah Fisher testified that she was employed by the Agency as a family

support worker, which includes collecting drug screens. Fisher collected drug screens

from Samantha on March 2, 2023, which tested positive for marijuana, and on October

18, 2022, which tested positive for marijuana. The only prescription medication Samantha

had during this time was for Lexapro. Fisher is also involved in supervising visits that

Samantha and Brandon had with B.A., D.A., and A.C., when A.C. had transportation. J.C

participated virtually in the visitation. Fisher testified that the visits have been monitored

visitation. The visits are monitored by camera and audio that can be viewed and listened

to via a computer in another room. The family has not had “off ground” visitation but

Fisher testified she would “have no safety concerns if off ground visits were to be

implemented.” Occasionally the parents may have raised their voices or used “cuss

words” but they are “always very compliant” when redirected. Fisher testified that she

believes the quality of the visitations have improved over time.

{¶13} On the third and fourth days of the hearing in August 2023, Angel Murray

testified that she was employed with the Agency as a family services caseworker and was

assigned to the children involved in this case. Murray testified that the children had been Athens App. No. 23CA25 8

in the Agency’s custody since December 2021 and that there were extensive historical

reports of physical abuse of the children by Brandon. Brandon denies the allegations of

abuse and Samantha “indicated that she didn’t feel like [Brandon] posed a threat to her

children.” The case plan objectives for Samantha were to protect and provide for the

children, implement positive parenting skills, demonstrate financial support for the needs

of the children, and engage in mental health and substance use services. Samantha had

mental health on her case plan because she “has a history of some mental health

concerns that can impair functioning.” Substance use services were part of the plan

because positive drug screens “was part of what lead to the removal of the children from

the home, and there’s been a history of substance use through the life of the case.”

Murray testified that Samantha engaged in the mental health and substance use services,

but there has not been sufficient progress for reunification of the children to occur.

{¶14} Murray testified that Samantha does not take responsibility for the situations

that led to the children being in the Agency’s care. Murray also testified that there was a

history of people who use drugs coming in and out of the home and Samantha did not

identify these people as being of concern to the safety and wellbeing of the children.

Samantha also signed a release of information form that did not allow for the release of

drug screens and she failed to seek out a primary care physician for certain physical

concerns. Samantha also acknowledged to Murray that Brandon may have over

disciplined, but she did not believe he posed a threat to the children. The four oldest

children had disclosed physical abuse and the youngest child expressed concern about

his mother, Samantha, not being safe at home without the children there. Since about

early June 2023, Brandon had moved out of the home he shared with Samantha and they Athens App. No. 23CA25 9

were separated because of the children’s complaints about Brandon. Murray testified that

the female children want to return home to Samantha if Brandon is not there. And the two

male children of Samantha want to return home to her. Murray testified that the female

children told her that they are “terrified” of Brandon and “described being tortured. Those

are their words. Because of the physical abuse they feel like he is mean.”

{¶15} Murray also testified that the children have a history of physical abuse and

“being at school dirty. Having chronic head lice. Being around town unsupervised.” There

was also concern about sexual abuse and sexual contact between the various siblings.

Murray also testified that she collected drug screens from Samantha on February 6, 2023,

which was positive for marijuana, on August 15, 2022, which was positive for marijuana,

on June 13, 2022, which was positive for marijuana and oxycodone, on March 30, 2022,

which was positive for marijuana, oxycodone, and hydrocodone, and on February 16,

2022, which was positive for marijuana and oxycodone. Murray testified that Samantha

did not have a medical prescription for any drugs at the time of the screenings she

performed. Murray testified that the positive drug screenings were concerning because

Samantha denied that she was continuing to use any of the drugs for which she tested

positive. Murray was concerned about the continual and consistency of drug use by

Samantha because drug use impairs decision making and the ability to keep the children

safe and make good decisions for them.

{¶16} Murray testified that one of the boys and both girls were in qualified

residential treatment programs after unsuccessful stays in foster care homes. Murray

testified that the Agency sought permanent custody of the children because despite the

efforts, the parents have not benefited from the substance abuse and mental health Athens App. No. 23CA25 10

services to be able to safely care for the children or provide for their extensive mental

health needs. The parents pose a threat to the children by not addressing their problems

and as a result they are not able to parent the children who “have very high vulnerability,

high needs.” Murray testified that “the needs of the children are extensive there [sic]

PTSD and a lot of their trauma and their mental health needs are based on early, um,

childhood abuse and neglect, and dependency issues, and that, um those are things that

they are going to continue to struggle with * * *.” Murray testified that the children have

expressed a desire to live with their mother, Samantha, and that Samantha has full-time

employment and safe and appropriate housing for the children.

{¶17} Katie Fox testified that she is employed as a program coordinator and

mental health therapist at Integrated Services for Behavioral Health and has been

Samantha’s therapist since October 2022. Fox testified that she is working with Samantha

to increase her self-esteem and address symptoms of anxiety. Fox believes that

Samantha is benefitting from counseling and has accomplished her goal of gaining

employment and is motivated to work on her case plan for reunification. Fox testified that

she does not provide drug counseling services to Samantha and did not know what drugs

Samantha has abused. Fox also testified that Samantha has never expressed concerns

that her children had been physically or sexually abused and they have not discussed

how Samantha plans to arrange care for her children if she must be at work.

{¶18} Lee Ann Brooks testified that she was a licensed chemical dependency

counselor at Integrated Services for Behavioral Health. She has been providing drug

counseling services to Samantha for less than a year and has seen her “sporadically.”

She had not seen Samantha since March 2023. They did drug screens of Samantha and Athens App. No. 23CA25 11

the substances found were benzodiazepine and Vicodin but Brooks could not testify about

the screens more specifically without having the reports to review. Brooks testified that

Samantha explained the positive drug screens were because she was overwhelmed with

not having the children in the house and the anxiety she was previously suffering.

{¶19} Kayla Garcia testified that she was a community behavior health worker at

Integrated Services for Behavioral Health and has worked with Samantha for about a

year. Garcia testified that Samantha was able to obtain many things on her own, such as

employment and her driver’s license. Garcia testified that she does not provide mental

health or substance abuse counseling. Karyn Armstrong testified that she works with the

Agency as a parent/mentor and has provided mentoring services to Samantha from

March 2022 to January 2023, meeting about 10 times over the course of those months.

Armstrong testified that Samantha was “kinda feeling a little overwhelmed with the

children and their difficult behaviors, supervision, * * * excessive discipline, and then just

educating on some parenting skills.” Armstrong testified that Samantha completed a

parenting curriculum called “Active Parenting.” Armstrong was satisfied with Samantha’s

performance and understanding of the parenting curriculum. However, Armstrong was

not able to see if Samantha benefited from the class because the children never came

back to her home. Armstrong and Samantha never discussed how she would keep her

children safe if they were returned to her.

{¶20} Samantha testified that she has lived on her own for approximately two

months and before that she was living with Brandon. She and Brandon have been

together as a couple for about nine years. Samantha testified that she and Brandon

thought it would be best if they lived apart because of everything that had been going on Athens App. No. 23CA25 12

with the children and then the new child abuse accusation “was kind of like an extra nudge

for him to go.” Samantha testified that she is renting a six-bedroom home, has her driver’s

license, and has recently become employed at Eclipse in The Plains where she does food

prep. Samantha testified that she has not met in person with her substance abuse

counselor since she started working because of scheduling issues. She also feels that

working has helped her with her substance abuse issues because she is not staying

cooped up and away from everyone. Samantha admitted that she refused to take a drug

screen with Driggs, but said it was because she was upset that Murray had not performed

the home inspection and she wanted her out to do that before Samantha was willing to

cooperate with a drug screen. Samantha said she plans to continue working if the

children were returned to her and she would have her aunt come to her house to watch

them. Samantha said that she would continue the children’s counseling sessions and

understands that they have gone through “a good bit of trauma.” Samantha understands

that the children had been having sexual contact with each other and that she plans to

have the child she believed to be the main instigator in a bedroom next to hers. She also

has motion sensors and alarms that were provided by the Agency that she plans to install

in the children’s bedrooms. Samantha testified that if the allegations that Brandon had

sexually abused C.C. were true then she would forbid him from seeing any of the children.

Samantha said she was never accused of physically or sexual abusing any of her children

and that she has a good relationship with them and is a stable supportive person that her

children rely upon. She testified that one of the foster care givers would call her to have

her help locate the children when they ran away or to calm them down. Samantha

believed it was in the children’s best interest to be returned to her custody. Athens App. No. 23CA25 13

{¶21} Samantha testified that she separated from Brandon once before earlier in

the case when he tested positive for cocaine, but then she got back together with him

because “he played the dad to my kids for years. We’ve been together for years. I didn’t

just want to start over now.” Samantha also testified that in May 2023 unbeknownst to

her, her cousin was hiding from the police in the basement of her house and she told the

police he was not inside because she did not know he was in her home. Samantha

testified that she supports Brandon’s request to be granted legal custody of B.A. and she

hopes to be able to stay in B.A.’s life because she is the only real mother B.A. has known.

Samantha and Brandon’s plan is for Brandon to regain custody of B.A. and Samantha

would regain custody of J.C., A.C., C.C., and D.A. and then Samantha and Brandon would

co-parent D.A.

{¶22} Traci Winchell testified that she was the CASA volunteer assigned to the

case and began working on it in March 2022. She recommended that permanent custody

of the children be granted to the Agency because it would be necessary for their safety.

Winchell testified that the children have all disclosed severe physical abuse by Brandon.

The children all want to be with their mother but they do not want Brandon to be there.

Winchell acknowledged that Samantha has made many positive changes and is moving

in the right direction, but Samantha testified that she will still be maintaining a relationship

with Brandon, with plans to co-parent with him, and Winchell believes that a continued

relationship with Brandon is not in the children’s best interest.

{¶23} The permanent custody hearing concluded on August 3, 2023, but on

September 22, 2023, Samantha and Brandon filed a joint motion for the court to consider

new evidence. They alleged that the investigation of the sexual abuse allegations against Athens App. No. 23CA25 14

Brandon by C.C. were concluded, and no criminal charges were being pursued. The

Agency opposed the motion on the ground that an additional hearing was unnecessary

as the Agency would stipulate that no criminal charges were filed against Brandon.

{¶24} On October 4, 2023, the court issued a judgment entry denying the

parents’ request for an additional hearing and granting the Agency permanent custody of

the children. The 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 for purposes of R.C.

2151.414(B)(1)(d). The court also found that it was in the best interest of the children to

award permanent custody to the Agency.

II. ASSIGNMENT OF ERROR

{¶25} Mother presents one assignment of error:

The juvenile court’s decision terminating Samantha’s parental rights was against the weight of the evidence.1

III. LEGAL ANALYSIS

A. Permanent Custody Award

{¶26} In her sole assignment of error, mother contends that the permanent

custody award was against the manifest weight of the evidence. Mother asserts that the

trial court terminated her rights to her children because of the abusive conduct of the

father2 and because the guardian ad litem “had no intention of ever allowing the children

to be returned to her.” She argues that while there is ample evidence that the father

1 Mother’s brief contains an argument that the juvenile court abused its discretion when it approved the

temporary visitation suspension in June 2023. Mother does not raise a separate assignment of error contesting the trial court’s decision and the argument appears to be made to support her existing assignment of error. 2 For simplicity, the parties and this court refer to Brandon as “father” even though, with respect to D.A., his

paternity has not been established and he is not the step-father or biological father of C.C., A.C., or J.C. Athens App. No. 23CA25 15

abused the children and many of them do not want him around, there was no evidence

she abused the children and all the children stated that they wanted to return to her. She

argues that the trial court’s decision “relies heavily on the recommendation of the GAL

who essentially conceded that because of the past events there was nothing Samantha

could do to satisfy her enough to recommend returning custody to her.”

B. Standard of Review

{¶27} “A reviewing court will not reverse a trial court’s judgment in a permanent

custody case unless it is against the manifest weight of the evidence.” In re C.S., 4th

Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21. We have explained:

“To determine whether a permanent custody decision is against the manifest weight of the evidence, an appellate court must weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether in resolving evidentiary conflicts, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered.” [In re T.J., 4th Dist. Highland Nos. 15CA15, 15CA16, 2016-Ohio-163,] ¶ 25, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20. In reviewing evidence under this standard, we defer to the trial court’s determinations of matters of credibility, which are crucial in these cases, where demeanor and attitude are not reflected well by the written record. Eastley at ¶ 21; Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

In a permanent custody case the dispositive issue on appeal is “whether the trial court’s findings * * * were supported by clear and convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; R.C. 2151.414(B)(1). “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; State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419, ¶ 14. “[I]f 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 Athens App. No. 23CA25 16

warranted, then the court’s decision is not against the manifest weight of the evidence.” In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).

(First alteration added.) Id. at ¶ 21-22.

C. Statutory Framework and Analysis

{¶28} Under R.C. 2151.414(B)(1), a juvenile court may grant permanent custody

to a public children services agency if the court determines by clear and convincing

evidence that (1) any of the circumstances in R.C. 2151.414(B)(1)(a) through (e) apply,

and (2) it is in the best interest of the child. In this case, the juvenile court found that R.C.

2151.414(B)(1)(d) applied, i.e., “[t]he child has been in the temporary custody of one or

more public children services agencies * * * for twelve or more months of a consecutive

twenty-two-month period * * *.” Mother does not dispute that the children were in the

temporary custody of the Agency for the requisite time; therefore, we must affirm the

permanent custody award unless the juvenile court’s best interest determination is

against the manifest weight of the evidence.

{¶29} R.C. 2151.414(D)(1) states:

In determining the best interest of a child * * * 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 * * * for twelve or more months of a consecutive twenty-two-month period * * *; Athens App. No. 23CA25 17

(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.

For the purposes of division (D)(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.

No one factor has “greater weight or heightened significance.” In re C.F., 113 Ohio St.3d

73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.

{¶30} The juvenile court acknowledged the sincerity of effort that Samantha and

Brandon exhibited throughout the proceedings. “Too often this Court has hearings where

no parent cares enough to even appear in Court. The courtesy shown by [Samantha and

Brandon], their good intentions, and attendance is noted and appreciated.” The juvenile

court also acknowledged that both parents have engaged in several services and “made

attempts to better themselves and their parenting capacities.” However, the court viewed

the key factor in the case to be the parents’ ability to provide protection to the children,

“this case hinges on the parent’s ability to provide a protective capacity and the Court

heard testimony that put that capacity severely in doubt.”

{¶31} The juvenile court noted that throughout the case Samantha and Brandon

had shown lapses in judgment and refusal to take responsibility. The lack of progress

meant that Samantha and Brandon’s visitations did not progress beyond on-site

supervised visitation with the children, “The lack of substantial progress did not warrant

even unsupervised or off-ground visits, let alone trial home visits.” The court reviewed the

factors governing the best interest of the children and found by clear and convincing Athens App. No. 23CA25 18

evidence that it was in the children’s best interest to grant permanent custody to the

Agency.

1. Interactions and Interrelationships of the Children

{¶32} The court noted that the biological father, Thomas, had not engaged with

any of his children (J.C., A.C., and C.C.) throughout the case and has not appeared at a

single hearing. However, both Brandon and Samantha had visited their children and their

interactions appeared to be appropriate. However, the court noted that the visitation has

been entirely in a supervised setting and that there were historical concerns that Brandon

has been physically abusive, and Samantha has failed to recognize these dangers. The

historical trauma the children suffered has affected them greatly and they need therapy

and/or residential placement. The court found that although the parents have engaged in

services, they have not benefitted to the point “that it would be necessary to parent these

children that have potential high-risk situations.”

{¶33} Samantha argues that the juvenile court’s decision to suspend her visitation

during the investigation into the new allegations of Brandon’s sexual abuse against C.C.

prejudiced her ability to exhibit her parenting skills off site. She argues that the reason

she failed to make sufficient progress to off-site visitation with the children, “is that the

trial court prevented her from doing so by suspending her visitation pending an

investigation into allegations involving the father,” not her. She contends the juvenile

court prevented her from creating the evidence of parenting that she needed and failed

to “explain how it expected Samantha to show she would manage unsupervised and off-

site visits when [it] prevented her from having any visits at all.” Samantha also argued

that the guardian ad litem was prejudiced against her and “was neither objective nor fair” Athens App. No. 23CA25 19

and used phrases like her “mom heart” when explaining why she believed visitation

should be suspended pending the sexual abuse investigation.

{¶34} The temporary visitation suspension that Samantha complains of did not

occur until June 26, 2023. The Agency filed an amended case plan on June 26, 2023 that

proposed that visitation between the children and the parents be temporarily suspended

pending an investigation of recently made allegations by C.C. that Brandon sexually

abused her. The parents objected to the suspension and the juvenile court held a hearing

on it on June 26, 2023. The trial court approved the visitation suspension because of

concerns that both Samantha and Brandon would attempt to interfere with the

investigation through their interactions and conversations with the children. This case

commenced on November 12, 2021 – 19 months before the temporary suspension of

visitation took place. Samantha had all of December 2021, the entire year of 2022, and

half of 2023 to show that she was capable of unsupervised parenting. But, she could

neither consistently produce clean drug screens nor acknowledge the exceptional risk her

long-term partner posed to the physical safety of her children. Her attempt to foist the

blame for her failure to make progress in visitation upon the trial court for a temporary

visitation suspension imposed at the end of June 2023 is unpersuasive and unsupported

by the evidence.

{¶35} Samantha also argues that the juvenile court did not consider how well her

supervised visitations went and how her interactions were loving and kind. However, the

juvenile court did acknowledge the amount of effort and involvement Samantha had

throughout the case. However, the problem the court noted was that Samantha was Athens App. No. 23CA25 20

unable to progress to the point where she was able to have unsupervised visitation with

the children at any time during the pendency of the case.

2. Wishes of the Child

{¶36} The juvenile court found that the children can express their wishes, but that

they have waivered in their desires throughout the case. Samantha’s children want to go

live with her if Brandon is not around. The juvenile court found that the guardian ad litem

has been vocal in advocating on behalf of the children, and she did not recommend

reunification because “she believes the environment is not safe for the children.”

{¶37} Samantha argues that the evidence clearly showed that the children wanted

to be with her and even the guardian ad litem acknowledged this. However, the crux of

the finding is not that the children wanted to be with Samantha – all the witnesses and

the court agreed that is what they wanted. But that is only half of what they wanted. The

children emphatically did not want to be with Brandon and they did not want to be with

Samantha if it meant also being with Brandon. It was clear from Samantha’s testimony

that she planned to continue a relationship with Brandon and that she planned to co-

parent several of the children with him. Samantha’s testimony about her past break up

with Brandon and her reason for getting back with him shows her lack of appreciation for

the danger he posed to her children. She testified that she separated from Brandon for a

few months after she learned he had cocaine in his drug screens. She testified that she

got back together with him and allowed him to move back into her home, “Because he

played the dad to my kids for years. We’ve been together for years. I didn’t just want to

start over now.” Athens App. No. 23CA25 21

{¶38} Samantha also argues that the guardian ad litem opinion differed from the

children’s wishes and did not consider Samantha’s efforts under the plan. She contends

that the guardian ad litem based her entire opinion on what had happened in the past.

However, the guardian ad litem testified that she interviewed the children and four of five

children reported physical abuse by Brandon, such as “being choked, and picked up off

the floor by the neck.” She testified that she believed that permanent custody with the

Agency was the best outcome because even though the children want to be with their

mother, they do not want Brandon to be there and they do not want their mother to

continue a relationship with him. She acknowledged that the children’s wishes were to be

with their mother, but it was in their best interest to be with the Agency because of the

mother’s continued relationship with Brandon:

Q. Okay. There is nothing she can do now?

A. She testified that she will maintain a relationship with Brandon.

Q. I don’t recall hearing that.

A. And that they are going to co-parent. Those were her words, not mine. She testified that, and that they will co-parent, and that she won’t force the girls to go around him, but is going to maintain a relationship with Brandon and that is not in the children’s best interest.

The guardian ad litem’s testimony was not, as Samantha contends, fixated on the past,

but was concerned with Samantha’s ongoing relationship with Brandon despite the fact

that the relationship was not in line with her children’s wishes or their best interests.

3. Custodial History

{¶39} The children were removed from the parent’s custody on December 2, 2021

and were in the temporary custody of the Agency for 12 or more months of a consecutive

22-month period. At the time of the final day of the permanent custody hearing the children Athens App. No. 23CA25 22

had been in the Agency’s custody continuously for 21 months. Samantha never

progressed to unsupervised visitation with the children.

4. Legally Secure Permanent Placement

{¶40} The Ohio Revised Code does not define the phrase “legally secure

permanent placement,” but “this court and others have generally interpreted the phrase

to mean a safe, stable, consistent environment where a child’s needs will be met.” In re

M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. “A legally secure permanent

placement is more than a house with four walls. Rather, it generally encompasses a

stable environment where a child will live in safety with one or more dependable adults

who will provide for the child’s needs.” Id.

{¶41} The juvenile court found that a legally secure permanent placement could

not be achieved without a grant of permanent custody to the Agency. The Agency

presented evidence that two of the children are in foster care and three of the children

are in various qualified residential treatment programs and all are receiving extensive

mental health services to help them address the trauma suffered. The court found that

permanent custody will enable to the children to be in “a safe environment that will allow

them to thrive, but also to have the necessary resources to further their development,

both physically, mentally and therapeutically.”

These children have lived through chaos for the majority of their lives. While the Court is concerned with the multiple placements of the children throughout this case, it is entirely conceivable that this has occurred due to the past trauma endured by the children. The agency has had over 100 screened referrals for this family and these children. Again, the Court recognizes that these are simply referrals, but the sheer number exhibits the chaos that was present in these children’s lives. Athens App. No. 23CA25 23

{¶42} Samantha argues that her testimony supports a finding that she can provide

a legally secure placement for the children. She testified that she and Brandon are now

living separately, and she has a lease on a home that provides sufficient living space for

the children, she obtained a driver’s license and a job, and would install the appropriate

cameras and alarms to ensure the children were safe. Samantha testified that she

decided to live separately from Brandon because of “everything that’s going on with the

kids right now.” Samantha admitted that they established separate housing because she

“felt that would provide perhaps the best chance of regaining custody.” Samantha also

admitted that it was “only recently” that she obtained a job and renewed her driver’s

license, which she had let expire.

{¶43} Samantha also argues that her mental health counselor, Fox, at Integrated

Services testified that she obtains services without their assistance, advocates for

medication for her children, and understands the need for ongoing counseling for her

children. However, Fox also testified that Samantha never expressed concerns about her

children having been physically or sexually abused and she has no way, other than

Samantha’s own self reporting, to know whether she has benefitted from parenting

classes. Samantha has also not talked to Fox about her plans to keep the children safe

while they are in her home, if they are returned to her. Additionally, her drug counselor,

Brooks, testified she interacts with Samantha “sporadically” and had not seen her in

person since March 2023 and that Samantha has failed drug screens performed by

Brooks. Samantha argues that her testimony and the testimony of her mental health and

drug counselors shows that the weight of the evidence supports a decision to deny

permanent custody to the Agency. Athens App. No. 23CA25 24

{¶44} However, none of those witnesses addressed the issue the juvenile court

identified as the critical factor this case “hinges on” – “the parent’s ability to provide a

protective capacity.” Therefore, their testimony added little to the most important issue in

this case. Additionally, even though Samantha is living separately from Brandon, that has

happened before. But she let him move back in after a few months because they have

been together for nine years and she “didn’t just want to start over now.” In fact, several

of the major developments in the case were very recent and occurred well into the

permanent custody hearing. Her job was a recent development – there is no evidence in

the record that Samantha has any successful work history or ability to maintain

employment. She testified that during most of the past nine years, while she has been

together with Brandon, she has been unemployed and stayed home. The juvenile court

determines what weight and credibility to give a witness’s testimony. The juvenile court

was in the best position to judge credibility, and we defer to its credibility determinations.

In re C.S., 4th Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21.

5. R.C. 2151.414(E)(7) to (E)(11) Factors

{¶45} The juvenile court did not identify any factors in R.C. 2151.414(E)(7) to

(E)(11) and there is nothing in the parties’ briefs or the record to indicate they are

applicable to this case.

6. Totality of the Circumstances

{¶46} Samantha’s inability or refusal to acknowledge the physical harm her

partner caused and the risk he continued to pose to her children existed throughout the

case and up to the very end. At the permanent custody hearing, Samantha testified and

expressed skepticism of the sexual abuse allegations due to concerns that her children Athens App. No. 23CA25 25

may be bribed to say and do things. She testified that she had not had a chance to talk

to C.C. to determine if she had been bribed or influenced by someone else to make the

allegations. Samantha speculated that C.C. borrowed the story from another abused girl,

“[C.C.] is also a follower and where she was in that facility and had heard one of the other

girls talking” and then “associated it with herself cause she’s been known to do that.”

{¶47} Samantha testified that she supports Brandon regaining custody of B.A, and

that she and Brandon will co-parent D.A. Well into a year and a half of the proceedings,

Samantha still refused to acknowledge or accept that Brandon was a danger to her

children. At the permanent custody hearing, Samantha was asked about the allegations

of physical abuse by Brandon against the children and she testified that she had never

witnessed it, had no reason to believe it ever happened, and she did not believe any

sexual abuse by Brandon against any of her children had ever occurred.

{¶48} The Agency witnesses and the guardian ad litem all testified that Samantha

had made efforts – the juvenile court was clear that Samantha had done much more than

others similarly situated – but the biggest issue was her inability to protect her children

from her abusive partner. She never acknowledged the abuse, instead describing it as

“over disciplining” and she described two of the children’s black eyes as coming from

accidents or “rough housing.” The most Samantha would concede was that Brandon was

“physically aggressive” with her children. Even though she knows none of her children

want to be around him, she continues to have a relationship with him.

{¶49} Based on the foregoing, we conclude the juvenile court’s best interest

finding is not against the manifest weight of the evidence. The Agency presented

competent and credible evidence upon which the court reasonably could have formed a Athens App. No. 23CA25 26

firm belief that a grant of permanent custody to the Agency was in the best interest of the

children. Accordingly, we conclude that the permanent custody award is not against the

manifest weight of the evidence, overrule the sole assignment of error, and affirm the

juvenile court’s judgment.

JUDGMENT AFFIRMED. Athens App. No. 23CA25 27

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

Any stay previously granted by this Court is hereby terminated as of the date of this entry.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.