[Cite as In re E.H., 2022-Ohio-3123.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: Hon. Earle E. Wise, Jr., P.J. Hon. William B. Hoffman, J. E.H. Hon. John W. Wise, J.
Case No. 2022CA00016
OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common PLeas, Juvenile Division, Case No. F2019-0134
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 7, 2022
APPEARANCES:
For Appellant Mother For Appellee
JERMAINE COLQUITT NO APPEARANCE 33 West Main Street, Suite 109 Newark, Ohio 43055
Guardian ad Litem For Grandmother R.H.
CEDRIC P. COLLINS ALLISON A. MAC LEOD-OWEN P. O. Box 564 110 East Elm Street, Suite B Pickerington, Ohio 43147 Granville, Ohio 43023
For E.H.
J. MICHAEL NICKS 96 West William Street, Suite 100 Delaware, Ohio 43015 Licking County, Case No. 2022CA00016 2
Wise, John, J.
{¶1} Appellant J.H. appeals the decision of the Licking County Court of Common
Pleas, Juvenile Division, which terminated Appellant’s parental rights and granted Licking
County Department of Job and Family Services’ (“Agency”) motion for permanent custody
of E.H. The following facts give rise to this appeal.
FACTS AND PROCEDURAL HISTORY
{¶2} E.H. was born on August 28, 2018. Appellant is the biological mother of
E.H.; B.H is the biological father of E.H. R.H. is the maternal grandmother of E.H.
{¶3} E.H. was found to be a neglected and dependent child.
{¶4} On March 19, 2019, E.H. was removed from the care of Appellant and B.H.
{¶5} On February 19, 2020, the Agency filed for permanent custody of E.H.
{¶6} On September 28, 2020, the trial court held a hearing on the State’s Motion
for Permanent Custody before the Magistrate.
{¶7} At the hearing, Jennifer Newton testified that she has been the foster mother
of E.H since April 4, 2019. When E.H. first came to live with the Newtons, he was on
oxygen, underweight, and fragile. E.H. had bronchial pulmonary dysplasia from scar
tissue in his lungs from being on a ventilator when he was born twenty-eight weeks
premature. E.H.’s half-brother, D.H., lives with the Newtons. D.H. came to the Newton
house on June 19, 2020.
{¶8} E.H. is currently in weekly speech therapy and physical therapy twice a
month. E.H. also has medical appointments for eczema and early cerebral palsy.
Appellant was not approved or permitted to attend the appointments. Licking County, Case No. 2022CA00016 3
{¶9} Next, Allison Keeley testified she was employed by Licking County Children
Services as a social worker until December of 2019. Ms. Keeley has been involved in
E.H.’s case since April of 2019. The Agency became involved in E.H.’s case due to
substance abuse by the parents, lack of financial stability, poor living conditions and
neglect.
{¶10} On April 18, 2019, a case plan for E.H.’s parents was filed. The issues
identified in the case plan were income, housing, substance abuse, couples counseling,
mental health and employment. At the time of filing, Appellant reported domestic violence
between her and E.H.’s father.
{¶11} E.H. was born twenty-eight weeks premature. His parents were not
following through on his medical appointments. Initially, the parents were living in Newark,
Ohio, but were evicted from their residence. E.H.’s parent’s relationship was on and off,
and they never attended couples counseling.
{¶12} After eviction, Appellant had no permanent address. Appellant reported to
the Agency that she was beginning work at a McDonald’s; however, the McDonald’s said
she was not working for them. Appellant claimed no other employment. Appellant also
claimed she was engaging in alcohol and drug abuse treatment at NYAP. However,
NYAP confirmed she went through the intake process, but never engaged in treatment.
Appellant confirmed to the Agency that she was still using cocaine and
methamphetamine.
{¶13} During an in-home visit, Ms. Keeley noted that Appellant would not allow
them past the entryway of the home. Appellant said they were being evicted and
everything was packed up. Licking County, Case No. 2022CA00016 4
{¶14} After B.H. was evicted from his residence in Newark, Ohio, he did not report
another permanent address. B.H. followed through on alcohol and drug treatment. B.H.
admitted to using cocaine and marijuana.
{¶15} The Agency looked to place E.H. with Appellant’s mother R.H. The Agency
decided against placement with R.H. due to R.H.’s own history with the Agency and
reports of mold in R.H.’s home. When R.H. and Ms. Keeley spoke about E.H. going to
live with R.H., R.H. said she can buy a new house so mold won’t be an issue.
{¶16} Next, Phaedra Abdalla testified that she is a visitation coordinator with the
Agency. She supervises visits, intervenes as needed, and takes notes. Appellant had
been removed from the visitation schedule because she had three no-show visits in a
row. Her visitation was rescheduled for August 27, 2019.
{¶17} During the visits, Appellant actively participated by playing with E.H.,
bringing him snacks, and changing diapers. She was generally pleasant and respectful.
{¶18} During R.H.’s portion of the visits, Ms. Abdalla stated R.H. was overbearing.
She was bossing people around and hindering Appellant’s visit with E.H.
{¶19} Next, Appellant testified she is currently living in Newark, Ohio with a friend
of her father. No formal lease or contract exists for housing. Appellant testified she
completed her initial drug and alcohol assessment, but when she returned to engage in
treatment, her counselor had left and they failed to assign her a new counselor.
{¶20} Appellant testified she was placed in temporary custody of Franklin County
Children’s Services at the age of thirteen or fourteen. She was briefly reunited with R.H.
at age sixteen, but was back in Franklin County Children’s Services custody until age
eighteen. Appellant had run away from home and was hit with a belt by R.H. Appellant Licking County, Case No. 2022CA00016 5
testified to possible use in the last three months of methamphetamine. Appellant testified
E.H.’s father has hit her on three occasions.
{¶21} Appellant currently lives with her boyfriend at a family friend’s house. There
is no formal contract in place. Appellant did not inform the Agency of her new residence,
the identity of her boyfriend, or that she is living with her boyfriend.
{¶22} Appellant also testified to her employment history. She stated she worked
a couple shifts at a pizzeria, worked at Club 2k, and would be paid for singing, dancing,
and rapping. She has not had any income in the last thirty days. Appellant has stayed
with R.H. recently. R.H. has provided some support to Appellant.
{¶23} The hearing was continued to October 13, 2020.
{¶24} At this hearing, a motion was made to allow R.H. to attend visitations with
E.H. The trial court granted this motion.
{¶25} Appellant failed to appear at the hearing, and her counsel moved for a
continuance. The continuance was denied.
{¶26} Bridget Lorenz Lemberg testified she is the lab director and toxicologist at
Forensic Fluids Laboratories in Kalamazoo, Michigan.
{¶27} Forensic Fluids Laboratories performed drug tests on Appellant. In May of
2019, Appellant tested positive for amphetamine and methamphetamine. In August of
2019, Appellant tested positive for amphetamine, methamphetamine, and marijuana. In
September of 2019, Appellant did not test positive for any controlled substance. In
December of 2019, Appellant tested positive for marijuana. In January of 2020, Appellant
testified positive for amphetamine, methamphetamine and marijuana. In February of
2020, Appellant tested positive for amphetamine and methamphetamine. In March of Licking County, Case No. 2022CA00016 6
2020, Appellant tested positive for amphetamine and methamphetamine. In June of 2020,
Appellant tested positive for methamphetamine and cocaine. In July of 2020, Appellant
tested positive for amphetamine and methamphetamine. In August of 2020, Appellant
tested positive for amphetamine and methamphetamine.
{¶28} Forensic Laboratories also conducted drug testing of B.H. In June of 2019,
he tested positive for amphetamine, methamphetamine, marijuana, and cocaine. In
August of 2019, he tested positive for amphetamine, methamphetamine, and marijuana.
In September of 2019, he did not test positive for any controlled substance. In November
of 2020, he tested positive for amphetamine and methamphetamine. In December of
2020, he tested positive for marijuana. In January of 2020, he tested positive for
marijuana. In February of 2020, he tested positive for marijuana. In March of 2020 he
tested positive for marijuana and cocaine. In June of 2020, he tested positive for
marijuana. In August of 2020, he tested positive for marijuana.
{¶29} Next, Palma Ashcraft testified she is a social worker with the Agency. E.H.
was born addicted to cocaine and marijuana. E.H. was removed from the care of
Appellant and B.H. over concerns of hospitalization from nonorganic failure to thrive and
losing a significant amount of weight. Neither Appellant nor B.H. were following through
on recommendations during hospital admissions. The Agency was also concerned over
home conditions, unemployment of Appellant, parenting, substance abuse, and mental
health.
{¶30} Ms. Ashcraft reviewed the case plan with Appellant and B.H. Appellant had
to obtain stable housing and employment, undergo substance abuse treatment, mental Licking County, Case No. 2022CA00016 7
health treatment, couples counseling, and resolve traffic and legal issues. From June of
2019 until April of 2020, Appellant had no stable residence.
{¶31} Ms. Ashcraft visited Appellant’s current residence in Newark on September
29, 2020. Ms. Ashcraft described it as appropriate. However, the Agency has concerns
over Appellant’s boyfriend, J.H. He has current felony charges against him for theft.
Appellant does not have a contract with the landlord. The Agency is concerned with
Appellant’s housing at this time.
{¶32} Appellant did not disclose employment until January of 2020, when she
worked at Hendoc’s pub in Columbus and picked up odd jobs on TaskRabbit until
February of 2020. From June of 2020 until August of 2020, she reported working at a
pizzeria and Club 2k, but never produced verification. Next, she claimed she traveled out
west with a friend delivering cantaloupe and watermelon to Colorado, but did not disclose
if or how much she was paid. Appellant’s employment is still an issue for the Agency.
{¶33} Appellant claimed she attended substance abuse classes at BHP in Mount
Vernon, Ohio, but when Ms. Ashcraft called to verify, they said that they had never heard
of her. Appellant never sought treatment for substance abuse or mental health as required
by her case plan. Appellant took thirteen drug tests over the course of the case plan, and
tested positive for methamphetamines in a majority of them. Appellant’s substance abuse
and mental health is still an issue for the Agency.
{¶34} Appellant did complete parenting classes. However, her attendance at
visitations with E.H. were not consistent. If all three boys were in attendance, it was very
chaotic, and hard for her to handle all three children. Now that her visits are only with Licking County, Case No. 2022CA00016 8
E.H., it is easier for her. Appellant’s behavior during the visits is not an issue for the
Agency.
{¶35} During one visitation, Ms. Ashcraft gave B.H. a ride from drug testing to
visitation one day. Upon arrival R.H. took pictures, and then Appellant arrived to videotape
and yell at Ms. Ashcraft and B.H. Appellant was yelling obscenities until R.H. told her to
get in R.H.’s car and they pulled away.
{¶36} B.H.’s case plan included obtaining stable housing, obtaining stable
employment, completing drug and mental health treatment, taking parenting classes,
couples counseling, and resolve any legal or traffic issues.
{¶37} After B.H.’s eviction from his residence in Newark, he stayed with friends
for several months. Then he moved to Massachusetts to live with his dad. He then moved
back to Newark in August of 2020. He now lives with Appellant’s foster brother. The
residence is a three-bedroom duplex. His two sons live with him. He sleeps on the couch,
and there is not a room for E.H. B.H. has an agreement with Appellant’s brother, no lease
or contract. B.H.’s housing is still a concern for the Agency.
{¶38} B.H. claims employment with Amazon, but has not verified his employment.
The issue of B.H.’s employment is still a concern of the Agency.
{¶39} B.H. attended substance abuse treatment in Ohio. This stopped due to
COVID. At the beginning, B.H. was testing positive for methamphetamine, but by the end
of the case he mainly tested positive for marijuana. B.H. has indicated he does not
recognize marijuana as an illegal substance and has no plans to stop using it. Substance
abuse and mental health are still a concern for the Agency. Licking County, Case No. 2022CA00016 9
{¶40} The Agency has identified R.H. as a possible relative for placing E.H. The
Agency ruled out R.H. because of her past agency involvement and conversations Ms.
Ashcraft had with her. R.H. had told Ms. Ashcraft that E.H. spent substantial time with
her. She cared for him frequently. This led Ms. Ashcraft to have concerns that she didn’t
identify the situation and remove E.H. from the situation. She should have noticed his
weight loss and that he was not receiving the care he needed. R.H. has a history of
physical abuse which led to Appellant’s removal from her home.
{¶41} R.H.’s initial home was also deemed unsuitable as there were black mold
issues.
{¶42} R.H. was present at the hospital during E.H.’s hospitalization more than
either parent. R.H. was a trusted source of care for E.H. when his siblings were sick. R.H.
obtained a new residence, but it was never inspected.
{¶43} No other family members have been identified as suitable for placement.
E.H. has been diagnosed with early cerebral palsy.
{¶44} E.H. is currently living with Jennifer and Jason Newton in a foster-to-adopt
placement. They are interested in adopting if permanent custody is granted to the Agency.
He is with his older sibling D.H. and has three foster siblings. All of his special needs are
being met by the Newtons.
{¶45} The Agency does not believe either parent has alleviated or will alleviate
the concerns giving rise to the dependency finding in the near future. E.H. cannot be
placed with either parent in the near future. It is in the Agency’s opinion that granting
permanent custody is in the best interest of E.H. Licking County, Case No. 2022CA00016 10
{¶46} Next, Cedric Collins testified that he is the Guardian ad Litem for E.H. He
has observed E.H. in his foster home and has observed that he is doing very well. Initially,
E.H. had many medical issues, was on oxygen, had significant weight loss, and was not
developing. Now he is growing, gaining weight, off oxygen, and walking.
{¶47} Mr. Collins still has concerns regarding B.H.’s and Appellant’s ability to
parent E.H. Specifically, they are still using illegal substances, they are not financially
stable, they do not have stable housing, and all these are important for a child with special
needs.
{¶48} Mr. Collins looked into placement with R.H. He went to R.H.’s home,
observed most everything a child of E.H.’s age would need. However, the stairs to the
basement did not have a railing to prevent a child from falling, which is important for a
child with special needs. She was not fully unpacked and boxes still needed put away.
R.H. was receiving partial retirement, but also working to meet her own needs. Mr. Collins
was concerned about meeting the needs of E.H. R.H. needs a better support system if
she were to take custody of E.H.
{¶49} Mr. Collins is concerned that given R.H. bond with E.H., she should not have
given him back to the parents when so many issues existed without calling the Agency.
The Guardian ad Litem testified it would be in the child’s best interest to grant the Agency
permanent custody of E.H.
{¶50} The trial court then recessed until November 23, 2020.
{¶51} At the November 23, 2020 hearing, the trial court heard a motion on granting
legal custody to R.H. Licking County, Case No. 2022CA00016 11
{¶52} R.H. testified she is E.H.’s maternal grandmother. She owns her own home
with four bedrooms and two bathrooms. E.H. will have his own bedroom. R.H. is on
unemployment due to COVID.
{¶53} R.H. has a conviction for disorderly conduct. She took her dog to a bingo
hall. She parked the car in the shade and put the windows down. She testified the dog
had water and food. She went into the bingo hall and came out after forty-five minutes to
check on the dog. She got into an altercation with officers when they tried to get her to
leave the bingo hall to take care of the dog.
{¶54} R.H. testified Appellant had behavioral issues in her youth, but she does not
recall beating Appellant with a belt. She said that Appellant is still lying about R.H.’s
abuse.
{¶55} The hospital discharged E.H. to R.H. after he was born, as two of his siblings
were sick. After returning E.H. to his parents three days later, E.H. was in the hospital
with a respiratory issue. Again, the hospital discharged E.H. to R.H. Appellant and the
children stayed with R.H. for four days until Appellant wanted to go back to live with B.H.
R.H. did not agree with this and did not want to take the children back. Appellant called
the police and told them R.H. kidnapped her children. When the police arrived, they
wanted to know why R.H. did not want to give the children back. She said because the
parents were fighting.
{¶56} Three weeks after the incident, E.H. went back into the hospital. R.H. stayed
with E.H. at the hospital. Licking County, Case No. 2022CA00016 12
{¶57} With relation to the incident with Ms. Ashcraft at a visitation, R.H. said she
saw B.H. in Ms. Ashcraft’s car, and it did not seem right to her. Then Appellant finished
her visitation and got angry with Ms. Ashcraft and B.H.
{¶58} R.H. has had three visits with E.H. She believes E.H. is enjoying his time
with her. She does not believe removing E.H. from his foster home would traumatize him.
{¶59} R.H. believes it is in the best interest of E.H. to be placed with her. She is
his grandmother, has been part of his life since he was born, she believes she can provide
a home for him and support him. Her support network has not met E.H. due to his being
hospitalized and then placed into foster care.
{¶60} Next, Palma Ashcraft retook the stand. Ms. Ashcraft testified she has not
spoken with R.H. about E.H.’s medical care. R.H. has only information provided by
Appellant or B.H.
{¶61} Ms. Palma observed R.H.’s visits with E.H. R.H. would play and sing to E.H.
E.H. looked to be enjoying himself, but after the visit he wanted to get away from the
visitation staff and back to his foster mom.
{¶62} Ms. Palma also testified that with R.H.’s history of physical abuse, it is not
in the best interest of E.H. to be placed with her. Ms. Palma also notes R.H.’s work
schedule would require E.H. to be shuffled around from R.H. to either her friend or her
nephew. Ms. Palma does not believe this is a good situation for a child with special needs.
{¶63} Mr. Collins then testified that he still believes it is not in the best interest of
E.H. to be placed with R.H. Mr. Collins is concerned about R.H.’s financial position. He
also believes E.H. is bonded to his foster family. Mr. Collins disagrees with R.H. that
removing E.H. from his foster family would not be traumatizing. E.H. has bonded Licking County, Case No. 2022CA00016 13
significantly with his foster family, and any removal will have an impact on the child,
especially removing him from his foster mother. He believes it is in the best interest of
E.H. to be placed in the Agency’s permanent custody.
{¶64} On February 18, 2021, the Magistrate issued a decision denying R.H. legal
custody of E.H., and granting permanent custody of E.H. to the Agency.
{¶65} On March 3, 2021, Appellant objected to the Magistrate’s Decision.
{¶66} On March 4, 2021, R.H. objected to the Magistrate’s Decision.
{¶67} On March 1, 2022, the trial court adopted the decision of the Magistrate
above Appellant’s and R.H.’s objections.
{¶68} On March 28, 2022, Appellant filed a Notice of Appeal.
{¶69} On May 25, 2022, Appellant filed a merit brief with this Court.
{¶70} On June 17, 2022, this Court granted Appellee’s Motion for Extension of
Time to file a Brief.
{¶71} Appellee did not file a merit brief arguing Appellee’s case.
ASSIGNMENT OF ERROR
{¶72} Appellant timely filed her notice of appeal and raises the following
Assignment of Error:
{¶73} “I. THE TRIAL COURT ERRED BOTH IN DENYING [R.H]’s LEGAL
CUSTODY MOTION AND IN GRANTING THE LICKING COUNTY DEPARTMENT OF
JOB AND FAMILY SERVICES PERMANENT CUSTODY OF E.H.” Licking County, Case No. 2022CA00016 14
I.
{¶74} In Appellant’s first Assignment of Error, Appellant argues the trial court erred
in denying R.H.’s legal custody motion and granting permanent custody to the Agency.
We disagree.
{¶75} A trial court may award legal custody to a non-parent after finding that legal
custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C. 2151.415(B); Stull v
Richland Cty. Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-
Ohio-738, 71 N.E.3d 660, ¶22. The court’s determination as to whether the facts make it
in the child’s best interest to be placed in legal custody, an appellate court applies the
abuse of discretion standard. Id.
{¶76} In order to find an abuse of discretion, we must determine the trial court’s
decision was unreasonable, arbitrary or unconscionable and not merely an error of law or
judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶77} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must
be based on clear and convincing evidence. R.C. §2151.414(B)(1). Clear and convincing
evidence is that evidence “which will provide 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). “Where the degree of proof required to sustain an issue
must be clear and convincing, a reviewing court will examine the record to determine
whether the trier of facts had sufficient evidence before it to satisfy the requisite degree
of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all Licking County, Case No. 2022CA00016 15
essential elements of the case supports the trial court’s judgment, an appellate court must
affirm the judgment and not substitute its judgment for that of the trial court. C.E. Morris
Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶78} 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 vs. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is
“crucial in a child custody case, where there may be much 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-Ohio-260, 674 N.E.2d 1159.
{¶79} This Court set forth a trial court’s analysis of a permanent custody motion
in In the Matters of: A.R., B.R., W.R., 5th Dist. Stark Nos. 2018CA00091, 2018CA00097,
2018CA00098, 2019-Ohio-389. When deciding a motion for permanent custody a trial
court must follow guidelines provided in R.C. §2151.414. R.C. §2151.414(A)(1) mandates
the trial court schedule a hearing and provide notice upon 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.
{¶80} 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 no relatives of the child are able to take permanent custody; or (d) the child has been Licking County, Case No. 2022CA00016 16
in the temporary custody of one or more public children’s services agencies or private
child placement agencies for twelve or more months of a consecutive twenty-two month
period.
{¶81} 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.
§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶82} In the case sub judice, the trial court found E.H. has been in the custody of
the Agency for longer than twelve (12) of the last twenty-two (22) consecutive months.
Pursuant to R.C. §2151.414(B)(1)(a), the trial court also found E.H. could not be placed
with either of the parents within a reasonable time or should not be placed with E.H.’s
parents.
{¶83} In making this decision, the trial court must consider the factors of R.C.
§2151.414(E), which states, in relevant part:
(E) In determining at a hearing held pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code whether a child cannot be placed with either parent within a
reasonable period of time or should not be with the parents, the court shall
consider all relevant evidence. If the court determines, by clear and
convincing evidence at a hearing held pursuant to division (A) of this section
or for purposes of division (A)(4) of section 2151.353 of the Revised Code Licking County, Case No. 2022CA00016 17
that one or more of the following exist as to each of the child’s parents, the
court shall enter a finding that the child cannot be placed with either parent:
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child
to be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
(2) Chronic mental illness, chronic emotional illness, intellectual
disability, physical disability, or chemical dependency of the parent that is
so severe that it makes the parent unable to provide an adequate
permanent home for the child at the present time and, as anticipated, within
one year after the court holds the hearing pursuant to division (A) of this
section or for the purposes of division (A)(4) of section 2151.353 of the
Revised Code;
(3) The parent committed any abuse as described in section
2151.031 of the Revised Code against the child, caused the child to suffer
any neglect as described in section 2151.03 of the Revised Code, or Licking County, Case No. 2022CA00016 18
allowed the child to suffer any neglect as described in section 2151.03 of
the Revised Code between the date that the original complaint alleging
abuse or neglect was filed and the date of the filing of the motion for
permanent custody;
(4) The parent has demonstrated a lack of commitment toward the
child by failing to regularly support, visit, or communicate with the child when
able to do so, or by other actions showing an unwillingness to provide an
adequate permanent home for the child;
***
(16) Any other factor the court considers relevant.
{¶84} In determining whether the child can be placed with either parent within a
reasonable time, the court stated that it had considered all relevant evidence and all
factors specifically enumerated in R.C. §2151.414(E). Based on the testimony presented,
the trial court found that E.H. had been in temporary custody of the Agency for more than
twelve months out of a consecutive twenty-two-month period.
{¶85} The trial court further found that efforts made by the Agency to work with
the parents of E.H. have been reasonable and appropriate and followed E.H.’s best
interest. The Agency used reasonable efforts to prevent the removal of E.H. from the
home, to remedy the conditions that led to removal of E.H., and to make it possible for
E.H. to return home. Specifically, the trial court found these reasonable efforts based on
the following actions taken by the Agency: identified areas of concern related to Appellant
and B.H., the need to address substance abuse and mental health issues, stability of
housing and income, and demonstrate appropriate parenting practices, facilitation of visits Licking County, Case No. 2022CA00016 19
with Appellant, B.H., and R.H., foster placement, and case planning for both B.H. and
Appellant.
{¶86} “The discretion which the juvenile court enjoys in determining whether an
order of permanent custody is in the best interest of a child should be accorded the utmost
respect, given the nature of the proceeding and the impact the court’s determination will
have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. No.
2000CA0024, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 95 Ohio App.3d 309,
316, 642 N.E.2d 424 (8th Dist. 1994).
{¶87} In determining the best interest of the child at a permanent custody hearing,
R.C. §2151.414(D)(1) requires 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 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 placement agencies for twelve or more months of a Licking County, Case No. 2022CA00016 20
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.
{¶88} No one element is given greater weight or heightened significance. In re
C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816.
{¶89} “A child’s best interest are served by the child being placed in a permanent
situation that fosters growth, stability, and security. In re P.S., 5th Dist. Licking No. 16-CA-
11, 2016-Ohio-3489, ¶57. A relative’s willingness to care for the child does not alter the
court’s considerations in deciding permanent custody. Id.
{¶90} The trial court’s decision indicates it considered the best interest of the child.
The trial court concluded the child’s need for legally secure placement could not be
achieved without awarding permanent custody to the Agency. Upon review of the entire
record, it is clear that the record supports the trial court’s finding that granting the motion
for permanent custody is in the child’s best interest.
{¶91} Appellant exposed E.H. to Appellant’s substance abuse, lack of stable
housing, domestic violence, and mental health issues. E.H. was born twenty-eight weeks
premature, addicted to marijuana and cocaine. E.H. has been diagnosed with early
cerebral palsy and had to be hospitalized due to weight loss and lack of development. Licking County, Case No. 2022CA00016 21
Appellant did not complete substance abuse and mental health courses and consistently
tested positive for controlled substances, mostly marijuana and methamphetamine.
Appellant never obtained steady employment or secured appropriate, stable housing.
B.H., while attending substance abuse classes, does not acknowledge the illegality of
marijuana and has no intention of quitting. B.H. was not present at the hearings for
permanent custody or legal custody. B.H. has acknowledge that he is not in a position to
care for a child with special needs.
{¶92} The Agency also explored placing E.H. with R.H. R.H., E.H.’s maternal
grandmother, moved to request legal custody of E.H. The trial court found R.H. had failed
to recognize and appreciate the significant ties E.H. has with his foster family. E.H. has a
limited relationship with R.H., and while the trial court noted R.H. cares for the child, E.H.
turns to his foster family for reassurance and comfort. E.H.’s special needs have affected
his ability to bond with R.H.
{¶93} E.H. shows visible excitement when around his foster parents and siblings,
and displays trust and ease towards them. His foster parents have managed his cerebral
palsy and he is thriving under their care. They ensure he attends all therapy and medical
appointments and are well versed in his special needs. The foster parents have a safe,
stable home, and are committed to E.H. and desire to adopt him. The trial court found
that E.H.’s best interests will be served by denying R.H.’s motion for legal custody and
granting the Agency permanent custody.
{¶94} The guardian ad litem recommended permanent custody be granted to the
Agency because E.H. could not be safely reunited with the parents. He has concerns Licking County, Case No. 2022CA00016 22
about R.H. financially meeting the needs of herself and E.H., and that E.H. has bonded
significantly with his foster family.
{¶95} We find that the trial court’s determination that permanent custody to the
Agency was in the child’s best interest was based upon competent, credible evidence,
and the trial court did not abuse its discretion in finding it was not in the child’s best interest
to be placed in R.H.’s legal custody.
{¶96} Appellant’s sole Assignment of Error is overruled.
{¶97} For the foregoing reasons, the judgment of the Court of Common Pleas,
Juvenile Division of Licking County, Ohio, is hereby affirmed.
By: Wise, John, J.
Wise, Earle, P. J., and
Hoffman, J., concur.
JWW/br 0830