In re D.R.

2024 Ohio 1749

• Court: Ohio Court of Appeals
• Decided: May 3, 2024
• Docket: 2024CA00003
• Status: Published

Opinion

[Cite as In re D.R., 2024-Ohio-1749.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE: D.R. JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

Case No. 2024CA00003

OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2022JCV00423

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: May 3, 2024

APPEARANCES:

For Appellee For Appellant

CRIS EOFF KATHALEEN S. O'BRIEN BRANDON J. WALTENBAUGH 116 Cleveland Avenue, N.W., Suite #303 Stark County Department of Job & Canton, Ohio 44702 Family Services - Legal Counsel 221 – 3rd Street, S.E. Guardian ad litem Canton, Ohio 44702 DEAN GRASE 116 Cleveland Avenue, N.W., Suite #700 Canton, Ohio 44702 Stark County, Case No. 2024CA00003 2

Hoffman, P.J. {¶1} Appellant B.R. (“Father”) appeals the December 6, 2023 Judgment Entry

entered by the Stark County Court of Common Pleas, Family Court Division, which

terminated his parental rights, privileges, and responsibilities with respect to his minor

child (“the Child”) and granted permanent custody of the Child to appellee Stark County

Department of Job and Family Services (“SCJFS”).

STATEMENT OF THE CASE AND FACTS

{¶2} Father and R.R. (“Mother”) are the biological parents of the Child. On April

18, 2022, SCJFS filed a complaint, alleging the Child was dependent, neglected, and/or

abused.

{¶3} SCJFS had investigated the family on numerous occasions due to concerns

related to Father’s anger management issues, the Child having injuries of unknown origin,

Mother’s physical limitations due to cerebral palsy, Mother’s mental health issues, and

the home conditions. SCJFS became involved with the family again in March, 2022, after

receiving a report the Child had petechiae and scratches around the neck, as well as

bruises on the right cheek, the back, and the arms, which the Child stated were caused

by Father throwing the Child off the bed. The home conditions were unsanitary, and the

Child had lice. Following an assessment at Akron Children’s Hospital, medical personnel

concluded the Child’s “injuries were concerning for physical abuse.” Complaint at p. 2,

unpaginated. The Child was diagnosed with failure to thrive, secondary to nutritional Stark County, Case No. 2024CA00003 3

neglect, and medical neglect related to plagiocephaly.1 The Child also was

developmentally delayed.

{¶4} Father and Mother agreed to an out-of-home safety plan with the Child’s

paternal great aunt and uncle. On April 14, 2022, the relative caregivers asked SCJFS

to remove the Child from their home as soon as possible as they were no longer willing

or able to provide full-time care for the Child. The filing of the complaint followed.

{¶5} The trial court conducted an emergency shelter care hearing on April 19,

2022, and placed the Child in the temporary custody of SCJFS. On April 20, 2022, the

trial court appointed Attorney Dean Grase as guardian ad litem (“GAL”) for the Child. At

the adjudicatory hearing on May 11, 2022, Father and Mother stipulated to a finding of

neglect. SCJFS dismissed the allegations of dependency and abuse. The trial court

found the Child to be neglected and ordered the Child remain in the temporary custody

of SCJFS. The trial court also approved and adopted the case plans for Father and

Mother. The trial court conducted review hearings on October 14, 2022, and March 14,

2023, and maintained the status quo.

{¶6} SCJFS filed a motion to extend temporary custody on March 9, 2023. The

trial court conducted a hearing on the motion on April 18, 2023. Father and Mother

stipulated to the extension. The trial court extended SCJFS’s temporary custody of the

Child to October 18, 2023.

{¶7} On September 6, 2023, SCJFS filed a motion for permanent custody. Due

to a failure to properly notarize its first motion for permanent custody, SCJFS filed an

1 “ ‘Plagiocephaly’ is an umbrella term used to describe different types of skull deformations, including flat

head syndrome.” See, Cleveland Clinic, https://my.clevelandclinic.org/health/diseases/10691 plagiocephaly-flat-head-syndrome. Accessed 29 March 2024. Stark County, Case No. 2024CA00003 4

amended motion for permanent custody on September 13, 2023. Mother filed a motion

for change of legal custody of the Child to a maternal aunt. The GAL filed his final report

on November 28, 2023, recommending permanent custody of the Child be granted to

SCJFS. The GAL also recommended Mother’s motion for change of legal custody be

denied as any further change in the Child’s placement would “almost certainly be highly

detrimental to [the Child].” November 28, 2023 Report of Guardian ad Litem.

{¶8} On December 5, 2023, the trial court conducted a hearing on SCJFS’s

motion for permanent custody and Mother’s motion to change legal custody. The following

evidence was presented at the hearing.

{¶9} Kelli Williams, the SCJFS caseworker assigned to the family, testified the

Agency became involved with the family in March, 2022, after receiving a report the Child

had petechiae eye, scratches on the neck, and bruises on the face, neck, back, and arms.

The Child stated Father had thrown the Child out of the bed. The Child missed several

days of school due to these injuries. The Child revealed incidents of domestic violence

including Father cutting Mother with a knife. The Child also disclosed, and Mother

admitted, Mother cut herself. The Child was diagnosed with failure to thrive. Williams

noted SCJFS attempted an out-of-home safety plan with relatives, but after a month, the

relatives were no longer able or willing to keep the Child in their home. Thereafter, SCJFS

filed a complaint, and the Child was placed in a foster home.

{¶10} Williams detailed Father and Mother’s case plans. Father and Mother were

required to complete parenting assessments at Summit Psychological and follow all

recommendations. In addition, Father and Mother were to complete Goodwill parenting Stark County, Case No. 2024CA00003 5

classes. Although Father and Mother completed the parenting classes, each received

certificates of non-compliance. Goodwill did not recommend reunification.

{¶11} Father’s case plan included anger management at Melymbrosia. Father

attended a couple of sessions, but stopped attending because he did not like the way the

staff spoke to him and refused to return. Father was required to submit to random alcohol

testing as alcohol was tied to some of the domestic violence incidents. At the time of the

hearing, Father had not complied with testing at CommQuest.

{¶12} Williams noted SCJFS had been involved with the family “at least once a

year [during the course of the Child’s short life] to tend to concerns of neglect.” Transcript

of Proceedings at p. 10. The unsanitary home conditions were an ongoing concern. The

home was filthy with dog feces and vomit on the floor. The house was also infested with

mice. Father trapped the mice and then held them in an aquarium, explaining he planned

to release them all at once. Williams explained neither Mother nor Father appreciated

the unlivable conditions of the home.

{¶13} With respect to the Child, Williams stated the Child has made substantial

progress. The Child had been diagnosed with failure to thrive, but after being hospitalized

and in foster care, the Child has gained weight. The Child had significant speech delays,

but has made tremendous progress in that regard. The Child is engaged in speech

therapy and has an IEP (“individual education plan”) at school. Although Mother and

Father say they love the Child, Parents have not demonstrated that commitment by

making the necessary changes.

{¶14} Regarding placement with the Child’s aunt, Williams explained a home

study was not conducted as SCJFS had already decided to place the Child with a school Stark County, Case No. 2024CA00003 6

intervention specialist and her husband. The intervention specialist worked with the Child.

The Child had a relationship with the intervention specialist. The Child had never met the

aunt until the aunt attended one visit. Although the aunt attended the visit, prior to it, she

informed Williams she no longer wanted to pursue custody of the Child. Following the

visit, the aunt told Williams the visit solidified the decision.

{¶15} Dr. Michael Stranathan, a psychology assistant with Summit Psychological

Associates, completed Father’s parenting evaluations. As part of the evaluation, Father

completed the Minnesota Multi Phasic Personality Inventory (“MMPI”) the Parenting

Stress Index, which is an appraisal of the problems an individual experience in his/her

relationship with his/her child as well as difficulties the individual experiences in parenting

the child; and the Substance Abuse Subtle Screening Inventory, 4 th Edition, which

screens for substance use disorders. Dr. Stranathan also interviewed Father regarding

his general parenting knowledge.

{¶16} Dr. Stranathan noted Father was “marginally cooperative” during the

interview, offering “very little information” and quickly responding “no” or “not applicable.”

Tr. at p. 35. Dr. Stranathan expressed concerns regarding Father’s tendency to minimize

or deny the concerns which led to SCJFS’s involvement. Father also minimized his own

cognitive delays as well as his poor impulse control and anger management issues.

Father failed to respond to a number of statements on the MMPI, which rendered the test

invalid.

{¶17} Dr. Stranathan recommended Father engage in individual counseling to

address his judgement and decision-making skills, and his anger management issues.

Dr. Stranathan added Father should undergo random drug screening as he refused to Stark County, Case No. 2024CA00003 7

provide details regarding his substance use. Dr. Stranathan also recommended Father

take an active role in attending the Child’s medical appointments, and participate in

parenting classes. Dr. Stranathan did not recommend unsupervised visits between

Father and the Child until Father successfully and fully completed his recommendations.

{¶18} Jennifer Fire, the supervisor of the parenting program at Goodwill

Industries, testified the parents involved in the program are provided with a variety of

opportunities to obtain help for anything they might need. Neither Father nor Mother

asked for individual help while they were in the program.

{¶19} When Fire and Amy Humerighouse, the Goodwill parenting instructor,

arrived at the home for a scheduled visit, Fire had to stop Humerighouse from stepping

in a pile of animal feces. Fire noted there were animal feces throughout the house. The

entire home was filthy, there were piles of clothing strewn about, bags of dirty laundry

shoved into closets which were covered in dust, and mildew and debris in the bathroom.

The Child’s bedroom was “a makeshift sunroom of sorts, on the first floor.” Fire was

concerned about the appropriateness of the Child’s bedroom as there were no screens

on the windows and the windows did not properly lock. The concerns with the home

conditions were discussed with Parents prior to the visit. Fire concluded the condition of

the home demonstrated Parents’ refusal and/or inability to absorb what was being taught

in the parenting classes.

{¶20} Fire testified Father accepted only minimal responsibility for SCJFS’s

involvement with the family. Father did not demonstrate changes following instruction on

various topics during the course of the program. Father’s anger management remained

a significant concern. Father began anger management counseling, but claimed he was Stark County, Case No. 2024CA00003 8

mistreated by the counselor and refused to re-engage. Regarding visits, Fire recalled

Father was more engaged with the Child than Mother, but the visits were not successful

due to the family dynamics. Father disclosed feeling “stuck” in his relationship with

Mother, fearing he would be charged with neglect if he left her.

{¶21} Kelly Williams testified during the best interest portion of the hearing.

Williams indicated SCJFS had been involved with the family since April, 2022,

approximately 19 months. When the Child arrived in SCJFS’s custody, the Child had

significant needs. The Child was diagnosed with failure to thrive, had significant speech

delays, and had undiagnosed attention deficit hyperactivity disorder (“ADHD”). Williams

stated the Child had “made tremendous progress in regard to her physical development

and growth.” Tr. at p. 74. The Child has an IEP at school due to her learning disability and

was recently prescribed medication for ADHD. The Child works with a behavioral

intervention specialist at school. The Child underwent genetic testing and a

neurodevelopmental assessment at Akron Children’s Hospital. The Child was diagnosed

with post-traumatic stress disorder (“PTSD”) due to the domestic violence witnessed in

the home.

{¶22} The Child was in a foster home for approximately one year, however, the

foster family was unable to keep the Child long term. The Child is currently in kinship

placement. Williams testified the kinship provider is able to meet the Child’s significant

needs. The kinship provider is an intervention specialist at the Child’s school and is versed

in the special needs of the Child. The Child had a relationship with the kinship provider

prior to the placement. The Child is happy in the placement and attached to everyone in

the home. Stark County, Case No. 2024CA00003 9

{¶23} After the foster family was unable to continue caring for the Child, SCJFS

investigated relative placement for the Child. Parents provided the name of an aunt. The

aunt had never met the Child and SCJFS arranged for the aunt to meet the Child at a

visit. SCJFS ultimately decided to place the Child with the kinship provider because of the

Child’s existing relationship with the kinship provider. The Child expressed a desire to

stay in the current situation.

{¶24} The Child did not appear to enjoy visits with Parents. The Child has no

problem separating at the end of the visits. Williams did not observe affection between

the Child and Parents. The Child called Parents by their first names despite being told to

call them “Mom” and “Dad.” Williams did not believe the Child would be harmed if Parents’

rights were severed. Williams added the benefit of permanency outweighed any harm.

She further opined permanent custody was in the best interest of the Child.

{¶25} Via Judgment Entry filed December 6, 2023, the trial court terminated

Parents’ parental rights and granted permanent custody of the Child to SCJFS. The trial

court found the Child had been in the temporary custody of SCJFS for twelve or more

months of a consecutive 22-month period. The trial court also found Parents failed to

remedy the conditions which caused the Child’s removal. The trial court determined it

was in the Child's best interest to grant permanent custody to SCJFS.

{¶26} It is from this judgment entry Father appeals, raising the following

assignments of error: Stark County, Case No. 2024CA00003 10

I. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND

FAMILY SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR

AND CONVINCING EVIDENCE THAT GROUNDS EXISTED FOR

PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED IN GRANTING PERMANENT

CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY

SERVICES (SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND

CONVINCING EVIDENCE THAT IT IS IN THE BEST INTERESTS OF THE

MINOR CHILD TO GRANT PERMANENT CUSTODY AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.

{¶27} This case comes to us on the expedited calendar and shall be considered

in compliance with App. R. 11.2(C).

I, II

{¶28} As an appellate court, we neither weigh the evidence nor judge the

credibility of the witnesses. Our role is to determine whether there is relevant, competent

and credible evidence upon which the fact finder could base its judgment. Cross Truck v.

Jeffries (Feb. 10, 1982), Stark App. No. CA5758. Accordingly, judgments supported by

some competent, credible evidence going to all the essential elements of the case will not Stark County, Case No. 2024CA00003 11

be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

Foley Constr. (1978), 54 Ohio St.2d 279.

{¶29} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion

for permanent custody of a child by a public children services agency or private child

placing agency that has temporary custody of the child or has placed the child in long

term foster care.

{¶30} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

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

grant permanent custody to the agency, and that any of the following apply: (a) the child

is not abandoned or orphaned, and the child cannot be placed with either of the child's

parents within a reasonable time or should not be placed with the child's parents; (b) the

child is abandoned; (c) the child is orphaned and there are no relatives of the child who

are able to take permanent custody; or (d) the child has been in the temporary custody of

one or more public children services agencies or private child placement agencies for

twelve or more months of a consecutive twenty-two month period ending on or after March

18, 1999.

{¶31} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C. Stark County, Case No. 2024CA00003 12

2151.414(B)(1)(a) through (d)is present before proceeding to a determination regarding

the best interest of the child.

{¶32} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should not

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶33} Father asserts SCJFS failed to prove, by clear and convincing evidence,

any grounds to support the trial court’s decision to grant permanent custody. We

disagree.

{¶34} As set forth in our Statement of the Facts and Case, supra, we find there

was sufficient and substantial competent evidence Father failed to remedy the problems

which initially caused the removal of the Child from Parents’ home, and the Child cannot

or should not be placed with Parents in a reasonable time. Father minimally complied with

his case plan. He began anger management counseling, but stopped attending because

he felt he was being mistreated by the counselors. Father would not return to Melymbrosia

to complete the program. Father did not comply with the case plan requirement he submit

to random alcohol testing as alcohol was tied to some of the domestic violence incidents.

Although Father attended Goodwill parenting, he failed to demonstrate any change during

the program. Further, despite being provided with plenty of notice of the home visit, the

house was unsanitary, and the Child did not have a safe and appropriate bedroom. Stark County, Case No. 2024CA00003 13

{¶35} Dr. Stranathan, who conducted Father’s psychological evaluation,

expressed concerns regarding Father’s tendency to minimize or deny the concerns which

led to SCJFS’s involvement. Father also minimized his own cognitive delays as well as

his poor impulse control and anger management issues. Father refused to provide Dr.

Stranathan with any details regarding his substance use.

{¶36} The trial court also found, pursuant to R.C. 2151.414(B)(1)(d), the Child had

been in the temporary custody of SCJFS for a period of time in excess of twelve of the

prior twenty-two consecutive months. The 12 of 22 finding alone, in conjunction with a

best interest finding, is sufficient to support the grant of permanent custody. In re

Calhoun, 5th Dist. No. 2008CA00118, 2008-Ohio-5458, ¶ 45.

{¶37} Father further asserts the trial court’s best interest finding is against the

{¶38} In determining the best interest of the child at a permanent custody

hearing, R.C. 2151.414(D)(1) mandates the trial court must 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 parents 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; (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; and (e) whether any of the factors in division (E)(7)

to (11) of R.C. 2151.414 apply in relation to the parents and child. Stark County, Case No. 2024CA00003 14

{¶39} The juvenile court has considerable discretion in weighing these factors. In

re D.A., supra at ¶ 47. Although a trial court is required to consider each relevant factor

under R.C. 2151.414(D)(1) in making a determination regarding permanent custody,

“there is not one element that is given greater weight than the others pursuant to the

statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.

Moreover, “[R.C. 2151.414(D)(1)] requires a weighing of all the relevant factors * * * [and]

requires the court to find the best option for the child * * *.” Id. at ¶ 64.

{¶40} When the Child arrived in SCJFS’s custody, the Child had significant needs.

The Child was diagnosed with failure to thrive, had significant speech delays, and had

undiagnosed attention deficit hyperactivity disorder (“ADHD”). The Child has “made

tremendous progress in regard to her physical development and growth.” Tr. at p. 74. The

Child has an IEP at school due to her learning disability and was recently prescribed

medication for ADHD.

{¶41} The Child is currently in kinship placement. The kinship, who is an

intervention specialist at the Child’s school, is able to meet the Child’s significant needs.

The Child had a relationship with the kinship provider prior to the placement. The Child is

happy in the placement and attached to everyone in the home.

{¶42} Parents identified an aunt for possible placement. The aunt had never met

the Child and SCJFS arranged for a meeting at one of Parents’ supervised visits. The

aunt subsequently advised SCJFS she did not wish to pursue custody of the Child. SCJFS

ultimately decided to place the Child with the kinship provider because of the Child’s

existing relationship with the kinship provider. The Child expressed a desire to stay in the

current situation. Stark County, Case No. 2024CA00003 15

{¶43} The Child did not appear to enjoy visits with Parents. The Child has no

problem separating at the end of the visits. The Child and Parents did not exhibit any

affection towards each other. The Child called Parents by their first names despite being

told to call them “Mom” and “Dad.” Williams, the SCJFS caseworker assigned to the

family, did not believe the Child would be harmed if Parents’ rights were severed, and

added the benefit of permanency outweighed any harm.

{¶44} Based upon the foregoing, we find the trial court's finding the Child could

not and should not be placed with Parents in a reasonable time was not against the

manifest weight. We further find the trial court’s finding it was in the

Child's best interests to grant permanent custody to SCJFS was not against

the manifest weight of the evidence.

{¶45} Father’s first and second assignments of error are overruled.

{¶46} The judgment of the Stark County Court of Common Pleas, Family Court

Division, is affirmed.

By: Hoffman, P.J. Wise, J. and Baldwin, J. concur