In re H.H.

2024 Ohio 686

Opinion

[Cite as In re H.H., 2024-Ohio-686.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

In re H.H., M.H. Court of Appeals Nos. E-23-011 E-23-012 E-23-017 E-23-018

Trial Court Nos. 2020-JA-007 2020-JA-008

DECISION AND JUDGMENT

Decided: February 22, 2024

*****

Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

Lorie K. Brobst, attorney for appellant, K.M.

Autumn D. Adams, attorney for appellant, C.H.

ZMUDA, J.

I. Introduction

{¶ 1} In this consolidated appeal, appellants, C.H. (“Mother”) and K.M.

(“Grandmother”), appeal from two February 7, 2023 judgments of the Erie County Court of Common Pleas, Juvenile Division, granting appellee, the Erie County Department of

Job and Family Services (“the Department”)’s separate motions for permanent custody of

Mother’s children, H.H. and M.H. (“the Children”) and denying K.M.’s motions for legal

custody. Finding no error below, we affirm the trial court’s judgments.

A. Facts and Procedural Background

{¶ 2} On October 7, 2020, the Department filed a complaint alleging that Mother’s

Children were abused, neglected, and dependent children as defined by R.C. 2151.031,

R.C. 2151.03, and R.C. 2151.04, respectively. The Department filed its complaint after

being advised on October 6, 2020, that the Children had been the subject of ongoing

sexual abuse by Mother’s then-fiancé, E.A., and of past abuse by another individual,

identified as the children’s “uncle” who sometimes lived with Mother. The Department’s

complaint sought an emergency order granting it temporary custody in addition to

prohibiting Mother and the children’s father, M.R. (“Father”), from having unsupervised

visitation during the temporary custody period.

{¶ 3} The trial court conducted a hearing on the Department’s request for

temporary custody on October 8, 2020. At the hearing, Mother waived her right to a

hearing and consented to the emergency granting of temporary custody to the

Department. Father did not appear for the hearing. The trial court granted temporary

custody of the children to the Department in an order memorialized that same day. The

trial court also set an adjudication hearing for November 6, 2020, with a dispositional

2. hearing to occur on December 18, 2020. Finally, the trial court appointed Nic Smith as

guardian ad litem for the children.

{¶ 4} The Department next submitted a case plan to the trial court on October 29,

2020. The plan required Mother, among other obligations, to complete each of the

following items:

1. A mental health assessment and to follow all recommendations by

her treatment provider;

2. Open up about the abuse her children have endured in mother’s

home with her treatment providers;

3. Complete an agency approved parenting class, follow all

recommendations, and use the skills she has leaned in her interactions with

her children;

4. Cooperate with announced and unannounced home visits at a

minimum of monthly; and

5. Allows access to her entire home if requested by agency staff or

law enforcement.

{¶ 5} Both Mother and Father appeared for the adjudication hearing on

December 3, 2020. At that hearing, Father admitted to the dependency allegations and

approved the case plan. Mother denied the agency’s dependency claim and the matter

3. was set for a trial on the children’s dependency as it related to Mother on December 7,

2020.

{¶ 6} At the adjudication hearing, the Department withdrew its abuse and neglect

allegations and proceeded only on its dependency allegation. Mother then admitted to the

dependency allegation. The trial court then proceeded with disposition of the

dependency claim, finding that the Children were dependent as defined by R.C. 2151.04

and that it would be contrary to the Children’s best interest to remain in the home with

Mother. As a result, the trial court extended the temporary custody award to the

Department with the stated permanent goal of reunification with their parents. To that

end, trial court approved the previously submitted case plan and held that the parties were

bound by the terms of that plan.1 The court also ordered that Mother and Father were

restrained from any contact with the Children other than as permitted under the case plan

pending reunification. The trial court’s dependency findings, extension of the temporary

custody award, and the conditions set for Mother to abide by the case plan was

memorialized in a judgment entry on December 11, 2020. The matter was set for

dispositional review on April 2, 2021.

1 Case plan services for Father were not included until the Department filed its March 31, 2022 Motion to Amend Case Plan after Father expressed a desire for reunification. Per the trial court’s judgment, Father ultimately requested to be excluded from consideration for reunification and is not part of the present appeal. Any reference to Father’s case plan compliance herein is only in relation to resolving Mother and Grandmother’s appeals.

4. {¶ 7} Also on December 11, 2020, following amendments to the case plan,2

maternal grandmother K.M. (“Grandmother”) filed a motion to intervene and a motion

for temporary custody or, in the alternative, visitation with the Children. The trial court

granted Grandmother’s motion to intervene as a party on August 24, 2021. The trial

court also granted GAL Smith’s motion to add W.S., Grandmother’s paramour, as a party

to this case. The trial court ordered that all parties were bound by the previously-

approved case plan.

{¶ 8} On October 6, 2021, the Department filed its Semi-Annual Review

Summary regarding the parties’ compliance with the approved case plan. Relevant to the

present appeal, the Department noted that Mother and Grandmother were not protecting

the Children from harm as they declined to acknowledge that the abuse had occurred and

continued to place the children in the care of one of their named abusers. Additionally,

W.S. was reported to drink heavily on daily occasions and due to his intoxication he

would not be able to care for the children. This was particularly concerning as W.S.

would be the caretaker for the Children overnight while Grandmother was working

should she be awarded legal custody. As to providing a secure residence, the report

2 The two amendments to the case plan added Mother’s additional son to the case plan and amended Mother’s obligation to complete the mental health assessment and complete any recommended follow-up treatment. The addition of Mother’s additional child and any proceedings related to the termination of her parental rights to that child are not part of this appeal.

5. noted that Mother did not have shelter or access to shelter and did not reside at the two

addresses she provided to the Department. Grandmother and W.S.’s home was reported

to be cluttered but not unsafe. The report noted that Mother, Grandmother, and W.S. had

a loving relationship with the children but concluded that continued temporary custody

with the Department was appropriate. Based on this report, the trial court again extended

its order granting temporary custody to the Department at the November 5, 2021

disposition review hearing.

{¶ 9} On July 25, 2022, following an additional extension of the temporary

custody order and continuance of the subsequent disposition review hearing, the

Department filed its motion for permanent custody. In its motion, the Department argued

that the Children had been in its temporary custody for 12 or more months of the previous

22-month period as described in R.C. 2151.414(B)(1)(a). The Department further alleged

that during that time, Mother and Father had failed to comply with the terms of the

approved case plan. Specifically, the Department alleged that Mother had not procured

suitable housing, declined to permit the Department’s caseworker to view her home, and

has not complied with the mental health requirements of the case plan. As to Father, the

Department alleged that he also had not provided secure housing, had not utilized healthy

coping mechanisms during stressful times, declined the Department’s requests to view his

home, and acknowledged that he was not prepared for reunification.

6. {¶ 10} On August 11, 2022, Grandmother filed her motion for legal custody of

both Children. She argued that she had previously exercised significant parental control

over the Children and assumed parental duties including those related to schooling,

homework, doctor’s appointments, and being financially responsible for them.

Grandmother also argued that she had a bond with both children that warranted an award

of legal custody.

{¶ 11} A two-day hearing on the Department’s motion for permanent custody and

Grandmother’s motion for legal custody began on December 19, 2022. The trial court

heard testimony on Grandmother’s motion for legal custody first, followed by the

Department’s only witness, Brooke Molnar, on its motion for permanent custody. The

summary of each witness’ testimony appears herein in the order that it was heard on

Grandmother’s motion. We include the entirety of Molnar’s separate examination

testimony, as it relates to both Grandmother’s motion and the Department’s motion, in a

single summary below. Due to the number of parties participating in each witness’s

examination, and for ease of reading, we omit reference to whether the testimony was

given on direct, cross, redirect, or recross examination, and instead provide an overall

summary of each witness’s testimony below:

Testimony of Pastor Jerald Finske

{¶ 12} Mr. Fenske is a pastor at St. Stephen United Church of Christ in Sandusky,

Erie County, Ohio. Grandmother and W.S. are members of his church. Fenske testified

7. that he knows Grandmother and W.S. as well as the Children through their involvement

with Sunday school and bible school programming as well as other various church

functions. He described Grandmother and W.S.’s prior interactions with the Children as

“nothing but positive.” He testified that they had a good relationship with the Children

and that they all expressed reciprocal love for one another. Pastor Fenske also testified

that during his time knowing Grandmother that she had occasionally sought assistance

from the church’s food bank but had never sought direct financial assistance. Pastor

Fenske concluded his testimony by conceding that he had never observed Grandmother,

W.S., or the Children at Grandmother’s home.

Testimony of Brooke Molnar, Department Caseworker

{¶ 13} Ms. Brooke Molnar testified that she is a caseworker with the Department

and was assigned to the Children’s case to work with the family on case plan services and

case management toward reunification or other permanency options for the Children.

She had been the Children’s caseworker since November, 2020. The Department opened

the Children’s case in October, 2020, when it received a report that the Children had been

the victim of sexual abuse by Mother’s then-fiancé, E.A., for the two years prior to bring

reported. During the course of the Department’s investigation, it was determined that

two other individuals also sexually abused the Children. E.A. was convicted for his

abuse and sentenced to 8 years in prison. Molnar was not aware of any charges filed

against the other two individuals.

8. {¶ 14} When asked about Grandmother as a potential placement for legal custody

of the Children, Molnar testified that Grandmother was added to the case plan when she

intervened as a party and that she was obligated to participate in mental health, parenting,

and stable housing services in order to comply with the case plan. Molnar testified that

Grandmother completed her parenting services obligations by completing a parenting

course. As to her compliance with the mental health services, Molnar testified that

Grandmother had been engaged in the services for approximately one year before

stopping her participation for a period of time. Molnar attributed that break in services to

Grandmother’s loss of her employer-provided health insurance after she stopped working

due to health issues. Molnar testified that Grandmother resumed those services after her

health issues resolved and was in compliance the case plan’s mental health services. She

also noted that W.S. was not compliant with the case plan as he had not attended the

recommended mental health treatment for nearly six months at the time of the hearing.

She also noted that he had been assessed for alcohol abuse but had not participated in any

treatment.

{¶ 15} Molnar testified that Grandmother had retained the same housing for the

duration of the Children’s case. Molnar performed home visits at Grandmother’s

residence where she found the home to be “cluttered” but with clean aisleways to allow

movement through the home. She also noted that other relatives had recently lived with

Grandmother in the room designated for the Children. Molnar was concerned that one of

9. the uncharged abusers of the Children was the child of those relatives. The room in

which they were staying did have beds for the Children but they did not have mattresses.

Molnar described the condition of the room as “deplorable” and discussed having the

relatives move out of Grandmother and W.S.’s residence. She noted that the room would

be appropriate for the Children once it was clean and the beds were set up

“appropriately.”

{¶ 16} Approximately two weeks later, Grandmother advised Molnar that the

relatives had moved out of the residence. Molnar then returned to the residence and

found that the room had been cleaned but that boxes were now stacked on the beds.

Grandmother advised Molnar that if she was awarded custody of the Children that she

had family members who were willing to purchase mattresses for the beds.

{¶ 17} Overall, Molnar found Grandmother had been “compliant” with the case

plan services. However, Molnar had already informed Grandmother “from day one” that

because she had previously lost permanent custody of her own children in 2000 that the

Department would not utilize her as a placement option for the Children—although she

later conceded that this was not an absolute bar to the trial court granting custody of the

Children to Grandmother.

{¶ 18} Molnar also testified that Grandmother was not a secure placement option

for the Children because of the Department’s concern that she did not adequately protect

the children after they disclosed their abuse to her. Molnar believed that Grandmother

10. had been aware of the Children’s allegations against E.A. prior to being reported to the

Department, despite Grandmother’s denial of that fact. Molnar also had concerns that the

Children, aged 10 and 12 at the time of the hearing, had hygiene issues inappropriate for

their level of development. Overall, Molnar stated that her concerns over Grandmother’s

failure to protect the Children from the abuse and her concerns over the home would have

resulted in the Department finding Grandmother was not a placement option even had she

not lost permanent custody of her own children.

{¶ 19} Prior to the Department’s involvement, the Children were spending “a

couple of days a week” with Grandmother despite Mother still having custody. Molnar

was unaware of who ensured that the Children attended school or otherwise provided for

them prior to the Department’s involvement.

{¶ 20} Molnar next discussed her observations of the Children both in foster care

and as the supervisor of visitations with Mother and Grandmother. During those visits,

Molnar observed the Children were “okay” with one another. She was aware of reports

that the Children fought a lot when she was not there but that they were excited to see her

during her visits so her time with them was “positive.” She also noted that the Children’s

behavior, school work, and hygiene were all significantly improved while in foster care.

She also described the Children’s special needs as it related to therapy related to the

abuse. Both Children were engaged in therapy sessions that occurred multiple times per

week. Their foster parents were able to take them to each session and provide support at

11. home related to the treatment received in those sessions. Molnar questioned whether

Grandmother and W.S. would be able to provide the necessary support to allow both

Children to attend all therapy sessions and follow the therapists’ recommendations

between sessions.

{¶ 21} Molnar testified that if the Department was granted permanent custody of

the Children, that it would seek adoptive parents for their permanent placement. She

conceded that she could not guarantee that they would be adopted together but that was

the Department’s intent when pursuing adoption for siblings. She also described the

Department’s intent to keep adopted Children within the same school district if possible.

The Department also seeks adopting families that will encourage relationships with the

adopted children’s other siblings.

{¶ 22} Describing the Department’s obligations before seeking permanent

custody, Molnar stated that it must “exhaust” all options for legal custody to be granted to

other individuals before proceeding with a permanent custody motion. Other than

Grandmother, Mother and Father did not provide the Department with any other potential

placements for the Children before the motion for permanent custody was filed. Molnar

stated that it was her professional opinion that Grandmother was not a suitable placement

largely due to her failure to protect the Children from past abuse which raised questions

about how Grandmother would respond if any similar situations arose in the future.

12. {¶ 23} In addition to addressing potential placement with Grandmother, Molnar

testified regarding the Department’s motion for permanent custody that, if granted, would

terminate Mother’s parental rights. She reiterated that Mother had custody of the

Children at the beginning of the Department’s involvement. Molnar did not write the

original case plan but testified that she reviewed the plan and was responsible for all

amendments during the proceedings below. She believed that the case plan was

appropriate to address any issues that would prevent Mother’s reunification with the

Children.

{¶ 24} Most concerning to Molnar regarding potential reunification with Mother

was that Mother had initially denied that E.A. had abused the Children and continued

living with him after the Children were placed in the Department’s temporary custody.

After he was indicted, Mother then began a relationship with one of the other men the

Children said had abused them. Molnar also believed that one of the other individuals

living with Mother at the time the Department became involved was also a sex offender.

In light of this, the case plan required Mother to provide secure housing for the Children.

The case plan also required Mother to financially support the Children which would

require her continued employment. The plan also required Mother to participate in

mental health assessment and any recommended treatment, and to take recommended

parenting classes.

13. {¶ 25} Mother did complete the parenting portion of the case plan. During her

supervised visits with the Children, they are all happy to see one another and Molnar

described them as having a loving relationship. However, Molnar also noted that Mother

had difficulty controlling the Children, often requiring the supervisor at their visits to step

in and assist. Mother also brings electronic devices on some visits and allows the

Children full access to them. On two separate visits, Molnar observed Mother leaving the

Children alone without telling them while she went to the bathroom and using a

community splash pad to wash the Children’s dishes.

{¶ 26} While initially failing to comply, Mother did eventually complete the

mental health assessment. The results of that assessment were that Mother was defensive

during the questioning and exhibited poor judgment. It was recommended that Mother

continue receiving mental health treatment. She attended several follow-up appointments

before stopping in July, 2022. She returned for another appointment in October, 2022,

and one just prior to the hearing. Molnar described Mother’s participation in the mental

health counseling as “sporadic” and stated that Mother had not substantially complied

with the mental health treatment requirements of the case plan.

{¶ 27} Molnar also stated that Mother has not complied with the housing portion

of the case plan. At the time of the hearing, Mother was living in a two-bedroom

apartment with her boyfriend and four other adults. Mother refused to allow Molnar to

visit the apartment and stated that if Molnar showed up that she would not be allowed

14. inside. As a result, face-to-face visits between Molnar and Mother only occurred at the

Department or during Mother’s supervised visits with the Children.

{¶ 28} Mother’s counsel questioned Molnar directly about whether the

Department could have offered any additional assistance, either financial or otherwise, to

assist Mother with completing the case plan. Molnar stated that Department assistance

was available but that Mother did not seek any assistance, as she did not appear

determined to complete the case plan services. Further, Molnar discussed with Mother

that completing the case plan services would not guarantee reunification, but that Mother

had to implement the practices learned through those services in order to be reunited with

the Children. Molnar did not see Mother apply any of the newly-learned parenting and

coping skills during her visits with the Children.

{¶ 29} The primary factor preventing Mother’s reunification with the Children,

according to Molnar, was Mother’s inability to provide them with secure housing.

Mother initially refused to believe that E.A. had abused the Children and continued to

live with him through the initial phases of his criminal proceedings. For that reason,

Molnar believed that Mother would not protect the Children from future abuse. Molnar

also stated that Mother’s current residence, a small apartment with 6 adults, was not an

appropriate placement for the Children. Choosing to live in this environment, Molnar

stated, was similar to her inability to protect the Children from E.A.’s abuse while he was

living in her residence. It was also these decisions that warranted the Department’s

15. development of the mental health case plan services as Mother did not express any

concerns about her current living situation, or what she would have done differently in

the past to have prevented the Children’s abuse.

{¶ 30} Molnar testified that the Children both required significant therapy related

to their abuse as well as treatment for ADHD. She had concerns over the Children’s lack

of boundaries, particularly with men, in that they would “hang” on and go with anyone

that asked them too. The Children also do not have an age-appropriate understanding of

physical boundaries and have inappropriately discussed sex and anatomy with others.

H.H. had recently been found searching for “naked” videos on a tablet computer. Molnar

also noted that H.H., now 12 years old, had a maturity level comparable to a toddler.

Molnar believed that M.H. was closer to an age-appropriate maturity level. Molnar

believes that the Children’s lives have improved while in foster care. She again noted

that their behavior, grades, and hygiene are all better with the support of their foster

parents.

{¶ 31} For these reasons, Molnar concluded that reunification with Mother was

not a secure legal placement. She also determined that granting legal custody to

Grandmother would not provide the Children with a secure legal placement. She

requested that the trial court grant permanent legal custody of the Children to the

Department so that they could find permanent secure placement for the Children through

adoption.

16. Testimony of Nicholas Smith, Guardian Ad Litem

{¶ 32} Mr. Smith testified that the Children, Grandmother, and W.S. had a close

relationship. They engaged in brief monthly visits but also had weekly phone calls

during the Department’s underlying case. The Children refer to Grandmother and W.S.

as “Nana” and “Paw Paw.” In his last conversation with them before testifying at the

hearing, the Children informed Smith that they wanted to see Grandmother and W.S.

again after the hearing. He expressed concern that the Children did not understand the

nature of the current proceedings in light of that conversation.

{¶ 33} Smith also expressed concerns over Grandmother’s health in light of a

recent COVID diagnosis and pneumonia that required her to be on oxygen treatments.

He noted that although she had recovered, that she was not in “the greatest of health.” He

did not have any concerns about Grandmother’s mental health. Smith believed that even

with his concerns over her physical health that Grandmother was physically fit enough to

meet the needs of the Children should she be granted custody. He did, however, note that

Grandmother previously lost custody of her own children.

{¶ 34} W.S.’s lack of mental health counseling and his alcoholism did raise

concerns for Smith. He also noted that at a recent, preplanned visit, W.S. appeared at the

door in flip-flops and a bathing suit. Smith later discussed W.S.’s appearance with the

Children but they denied that W.S. had engaged in any inappropriate behavior with them.

17. {¶ 35} During his time as the Children’s GAL, Smith learned that Grandmother

had provided a significant amount of care in the years prior to the Department being

granted temporary custody. That care, however, was always guided by Mother’s

directions.

{¶ 36} Smith also testified about Grandmother’s ability to ensure that the Children

received all of the care necessary for secure placement. He noted that the H.H. was on an

individual education plan at school that required more guardian involvement than most

students. He also questioned Grandmother’s ability to get the Children to their numerous

therapy and medical appointments, particularly in light of her overnight work schedule.

Lastly, Smith testified that although Grandmother’s house was “in pretty bad shape”

during his first visit, it was in better condition and only “cluttered” during his most recent

visit. He recommended that regardless of the outcome of the proceedings that the

Children should continue their relationship with their Grandmother.

{¶ 37} At the outset of his time with the Children, they told Smith that they

wanted to return to Mother as soon as possible. He testified that over time, they have

also discussed returning to Grandmother’s and expressed interest in having a “new

family.” Smith testified that the Children did not appear to have a clear understanding of

the ongoing proceedings and, therefore, found that their statements provided little insight

into their true desired outcome.

18. {¶ 38} As to his ultimate conclusion, Smith testified that based on all of the

concerns he had regarding Grandmother and W.S., that Grandmother would not provide a

secure placement for the Children and that permanent custody should be granted to the

Department.

Testimony of W.R.

{¶ 39} W.R. is Grandmother’s cousin. He testified that he and Grandmother have

a close relationship. He had previously observed Grandmother with the Children on

numerous occasions. He stated that Grandmother provided the Children with stability

that they would not receive otherwise. He also stated that Grandmother provided the

Children with basic necessities and that she was a “major” part of their lives prior to

October, 2020. W.R. never noticed the Children having any hygiene issues. He also

testified that Grandmother’s house was “clean” as of his visit approximately one month

prior to the hearing.

Testimony of Carolyn Willinger

{¶ 40} Ms. Willinger is the Children’s former Kindergarten teacher and cheer

coach. She testified that Grandmother and W.S. were very active in the Children’s

school activities. They participated in conferences with her, would attend events at the

school, and often dropped off and picked up the Children. She testified that the Children

would frequently come to school with lice and the issue would only be resolved if she

19. contacted Grandmother and W.S. Mother was not at as many events as Grandmother and

W.S., but would attend as often “as she could.”

Testimony of W.F.

{¶ 41} W.F. is Grandmother’s stepfather. He was aware of Grandmother’s prior

contact with the Department in which she lost custody of her children. He testified that

Grandmother is more mature than she was at that time. W.F. described Grandmother’s

interactions with the Children as positive and that he had no concerns about their

relationship.

Testimony of R.F.

{¶ 42} R.F. is Grandmother’s stepmother. She was also aware of Grandmother’s

prior contact with the Department. She testified that Grandmother has “grown up a lot”

since then. She described the Children’s relationship with Grandmother and W.S. as

positive and noted that any time they visited, the Children were with them.

Testimony of Dina Dudin

{¶ 43} Ms. Dudin is a therapist at Bayshore Counseling. Grandmother became

Dudin’s patient beginning on April 29, 2022. Grandmother was receiving treatment from

a different therapist beginning on August 31, 2021. Dudin was familiar with all of

Grandmother’s prior treatment and reviewed all records from that prior treatment when

Grandmother became her patient. Dudin testified that Grandmother had 29 therapy

sessions since beginning treatment with the prior therapist up to the date of the hearing.

20. Grandmother typically has therapy sessions once every two to three weeks, a schedule

Dudin described as “typical.”

{¶ 44} Dudin counsels Grandmother primarily for depression. She stated that

Grandmother’s depression was triggered by the removal of the Children from her life

following the granting of temporary custody to the Department. Dudin noted that

Grandmother also received initial treatment for her depression from Dr. Jama.3 Dr. Jama

prescribed medication to Grandmother and Dudin testified that Grandmother was

“compliant” with her medication.

{¶ 45} Dudin described Grandmother’s progress under her treatment plan as “very

good.” Grandmother has consistently attended her sessions and her depression symptoms

have decreased while her coping skills have increased. Dudin did not offer an opinion on

how long Grandmother would need to be in therapy as that decision is “driven by the

client.” Dudin could not identify any concerns that she believed would prevent

Grandmother from caring for the Children if she was awarded custody. She did concede,

however, that Grandmother’s therapy focused on her depression and did not focus on

how Grandmother would protect the children from abuse.

3 Dr. Jama’s full name was not provided.

21. Testimony of Grandmother

{¶ 46} Grandmother began her testimony describing her relationship with W.S.

She and W.S. had been romantically involved since 2005. The Children and Mother all

lived with Grandmother and W.S. from prior to H.H.’s birth until Mother had her third

child in 2018. Approximately half of the last year they were living together, the family

lived in hotels.

{¶ 47} Grandmother described herself as the Children’s “primary caregiver”

during that time despite the fact that Mother also lived in the residence and at the hotel.

She testified that she and W.S. were responsible for getting the Children to school and to

any scheduled appointments. During the latter part of their living in hotels, Mother and

her youngest child moved into a separate residence and Grandmother and W.S. provided

all care for the Children after that. Grandmother and W.S. attended all of the Children’s

school functions as well as parent-teacher conferences during that time. They also

enrolled the Children in a cheer program and attended those classes and events.

Grandmother also ensured that the Children took all prescribed medicine and developed

study games to help them with school. Grandmother testified that from 2018 to 2020, the

Children spent approximately half of their time at her residence with her and W.S. She

described her relationship with the Children during that period as “awesome.”

{¶ 48} After Mother and the Children moved out in 2018, Grandmother only saw

the Children on weekends. Grandmother and W.S. moved into their current residence

22. that same year. Grandmother also believed that Mother started dating the Children’s

abuser, E.A., in 2018 but was not sure as to the specific timing. She did not see E.A.

frequently, but he did pick up the Children from her on occasion. She recalled one

occasion when the Children came back from Mother’s house and were crying but would

not explain why. She confronted E.A. and he stated that the Children were upset because

they got in trouble. She testified that she did not care for E.A. and that his presence put a

strain on her and Mother’s relationship.

{¶ 49} Prior to the Department’s involvement, Grandmother and W.S. were still

providing care for the Children as they spent time at their residence. W.S. would

typically walk the Children to the bus stop each morning and would be waiting at the bus

stop to pick them up after school.

{¶ 50} At the time of the hearing, Grandmother was employed with Erie

Residential. Her job involved “taking care” of adults that were “mentally challenged.”

This involves cooking, cleaning, and performing general household chores for the

residents. Her shift is from 10:30 p.m. until 8:00 a.m. the following morning. She is off

on Wednesdays and Saturdays. W.S. is not employed but receives Social Security

Income. W.S. takes care of the Children while Grandmother is working. She testified

that her and W.S.’s income is sufficient and that she does not seek financial assistance.

{¶ 51} Grandmother next addressed the Children’s eventual reporting of their

abuse to her. Grandmother testified that H.H. began seeing the school counselor in first

23. grade but Grandmother was not advised as to the nature of the counseling. She expressly

denied that the school counselor informed her that the Children were being sexually

abused. She stated that M.H. never saw the school counselor.

{¶ 52} Grandmother also recalled an incident prior to Department’s intervention in

which she took H.H. to the doctor after H.H. informed her that she had some bloody

vaginal discharge. The doctor diagnosed her with a urinary tract infection. Grandmother

denied that H.H. had informed her of the abuse at that time. However, later in her

testimony, when presented with evidence that she previously believed this incident to

have been related to sexual abuse, Grandmother could not deny that she had made such a

statement.

{¶ 53} Eventually, the Department’s intervention resulted from an incident that

occurred on October 4, 2020, when H.H. began throwing a tantrum as Grandmother was

preparing to return the Children to Mother. H.H. asked Grandmother not to send them

back but would not explain why. Grandmother believed that something was wrong and

contacted the police. The police informed her to return the Children to Mother because

she had legal custody. She then reached out to Mother who told her not to return the

{¶ 54} The following evening, Grandmother was riding in her car with a friend

and the Children. The friend informed Grandmother that H.H. had confided in her that

E.A. was “playing doctor” with the Children. Grandmother confirmed this with the

24. Children. She immediately drove to the Sandusky Police station and filed a report

regarding the abuse. The following morning, Grandmother received a call from the

Department to present the children at their office for “forensic testing.” Grandmother

was working during the day at that time and was at work when she received the call. She

had her parents take the Children for the testing and she picked them up and returned

home afterward. Representatives from the Department and a Sandusky police officer

picked up the children later that evening.

{¶ 55} Since that time, Grandmother and W.S. were allowed to see the Children

for 15-minute supervised visits once a month until just prior to the hearing when the time

period was extended to one hour. The Children were always excited to see Grandmother

and W.S. She testified that the short nature of these visits makes the Children upset and

act out against Department staff.

{¶ 56} Grandmother next described her previous interaction with the Department

when she lost parental rights over her own three children. She stated that at the time she

was 21 years old, immature, financially unstable, and in an abusive relationship. She

described herself at the time of the hearing as being more mature, a better person, and

healthier.

{¶ 57} She conceded that W.S. had not completed the alcohol counseling services

as required by the case plan since he “was not there for a while” for his scheduled

appointments. She testified that W.S. drinks three beers per day and she was not aware

25. that W.S. had tested positive for alcohol consumption at his most recent assessment.

When presented with the case plan that required W.S. to “maintain sobriety,”

Grandmother stated her understanding that this meant he was to consume no alcohol.

She excused W.S. having three beers per day while he was supposed to be maintaining

sobriety because he had not, to her knowledge, tested positive for alcohol at his

assessments. She later acknowledged that W.S. needed help, however, because while she

did not consider his drinking a problem currently, she felt it could lead to a problem.

Close of Hearing and Trial Court Judgment

{¶ 58} At the conclusion of the hearing, all parties waived closing arguments. The

trial court took the matter under advisement. The trial court rendered nearly identical

decisions in each case on February 7, 2023. In those judgments, the trial court, having

considered the factors required under R.C. 3109.04(F)(1), held that it was in the

Children’s best interest to deny Grandmother’s motion for legal custody. The trial court

then, having considered the factors identified under R.C. 2151.414(D)(1), determined that

it was in the Children’s best interest to grant permanent custody to the Department. The

trial court, therefore, ordered that Mother’s parental rights, privileges, and responsibilities

as to the Children were terminated and that permanent custody was granted to the

26. B. Assignments of Error

{¶ 59} Mother timely appealed and asserts the following error for our review:

1. The finding or permanent custody was against the manifest

weight of the evidence.

{¶ 60} Grandmother timely appealed and asserts the following error for our

review:

1. The trial court abused its discretion when if found that it is in the

children’s best interest to grant permanent custody of them to the Erie

County Department of Job and Family Services (EDJFS) rather than place

the children in the legal custody of [Grandmother]. In doing so, the trial

court erroneously found that it was in their best interests to permanently

end their relationship with their parents and blood relatives. The trial court

also erred in finding that ECDJFS provided reasonable support to

Grandmother to facilitate her case plan progress. The decision of the trial

court is therefore against the manifest weight of the evidence.

II. Law and Analysis

A. Standard of Review

{¶ 61} Before addressing the merits of the parties’ arguments, we first must clarify

the appropriate standard of review for each appellant’s assigned error. In In re. Z.C.,

2023-Ohio-4703, --N.E.3d--, the Ohio Supreme Court resolved a certified conflict

27. between two Ohio appellate districts regarding the appropriate standard of review for

permanent custody decisions made pursuant to R.C. 2151.414. Id. at ¶ 1. Specifically,

the court was asked to determine whether the appropriate standard of review of such a

decision was abuse of discretion or sufficiency of the evidence and/or manifest weight of

the evidence. Id. The court ultimately concluded that the appellate standard of review

for a permanent custody decision was sufficiency of the evidence/manifest weight and

not abuse of discretion. Id. at ¶ 18.

{¶ 62} Recognizing that sufficiency and manifest weight are separate and distinct

standards, the court stated that the appellate court must apply the standard “as appropriate

depending on the nature of the arguments that are presented by the parties.” Id. Here,

Mother expressly frames her alleged error in the trial court granting the Department’s

motion for permanent custody as being against the manifest weight of the evidence

presented at trial. Therefore, we review her assigned error under a manifest weight

standard of review.

{¶ 63} Grandmother’s assigned error alleges that the trial court’s denial of her

motion for legal custody was both an abuse of discretion and against the manifest weight

of the evidence. Careful review of In re. Z.C. shows that the Ohio Supreme Court was

not asked, nor did it make, a clarification on the standard of review applicable to the

denial of a motion for legal custody pursuant to R.C. 2151.353(A)(3) and is inapplicable

28. to Grandmother’s assigned error. Instead, we previously established the correct standard

of review in In re. K.S., 6th Dist. Huron No. H-21-020, 2022-Ohio-2810.

{¶ 64} “Legal custody proceedings vest in the custodian the right to have physical

care and control of the child, subject to any residual rights and responsibilities that

remain intact with the birth parents.” Id. at ¶ 17. “Because custody determinations are

‘some of the most difficult and agonizing decisions a trial court must make,’ a trial court

judge must have broad discretion in considering all of the evidence.” Id., citing Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). “Therefore, an award of

legal custody will not be reversed on appeal absent an abuse of discretion.” Id. For these

reasons, we find that our review of the trial court’s denial of Grandmother’s motion for

legal custody is for an abuse of the trial court’s discretion and not, as Grandmother

suggests, whether that decision is against the manifest weight of the evidence.

{¶ 65} Having determined the appropriate standard of review, we turn to the

merits of the parties’ assigned errors.

B. The trial court’s denial of Grandmother’s motion for legal custody was not an abuse of discretion.

{¶ 66} As determined above, we review the trial court’s denial of Grandmother’s

motion for legal custody for an abuse of discretion. K.S. at ¶ 18. “To constitute an abuse

of discretion, the ruling must be unreasonable, arbitrary, or unconscionable.” Id.

{¶ 67} An award of legal custody for a child that has been adjudicated neglected,

dependent, or abused is authorized pursuant to R.C. 2151.353(A)(3). K.S. at ¶ 19. Any

29. decision granting legal custody to an individual other than a custodial parent must

consider the best interests of the child. Id. A trial court may consider a number of factors

in determining the best interests of the child including those identified in R.C.

2151.414(D), R.C. 3109.04(F)(1), “a combination of the two, or general notions of what

should be considered regarding the best interests of the child.” Id., citing In re. E.H., 6th

Dist. Ottawa No. OT-15-044, 2016-Ohio-8170, ¶ 16. In her brief, Grandmother argues

that granting permanent custody to the Department is not in the Children’s best interest

and that the trial court did not consider her completion of the case plan services when it

rendered its decision. As a result, she argues, the trial court abused its discretion in

denying her motion. We disagree.

{¶ 68} In its detailed decision, the trial court reviewed the evidence presented at

the hearing under the applicable factors in R.C. 3109.04(F)(1)(a) through (j) and “other

relevant factors.” Notably, the trial court addressed multiple factors that weighed in

favor of placement with Grandmother being in the Children’s best interest. These

included Grandmother’s desire to obtain legal custody, Grandmother’s compliance with

the case plan services related to her mental health care, Grandmother and W.S.’s strong

interactions with the Children, and Grandmother’s testimony that she would abide by any

court rulings. The trial court’s judgment also considered factors that weighed against

placement with Grandmother including the GAL’s recommendation that permanent

custody be granted to the Department, the Children’s improvement at school since being

30. placed in the Department’s temporary custody, Grandmother’s history of unstable

housing, Grandmother’s lack of insight necessary to recognize the Children’s signs of

abuse, particularly when coupled with H.H.’s Kindergarten teacher recognizing the need

for intervention, Grandmother’s inability to maintain a safe and clean home for the

Children, and W.M.’s refusal to address his alcohol use.

{¶ 69} The court noted its consideration of each of these factors in ultimately

determining that denial of Grandmother’s motion for legal custody was in the Children’s

best interests. Having reviewed the record, we find that the trial court’s decision was not

arbitrary, unreasonable, or unconscionable. Grandmother’s argument that the trial court

did not consider her compliance with the case plan services or the “significant factor” of

her and W.S.’s bond with the Children is directly refuted by the trial court’s express

consideration of those factors.

{¶ 70} Put simply, the trial court determined that it was in the Children’s best

interests to deny Grandmother’s motion for legal custody in spite of her bond with the

children and her continued compliance with the case plan services. This was merely one

of the “difficult and agonizing” decisions related to child custody on which we must

afford that trial court its broad discretion. K.S. at ¶ 18. While Grandmother’s arguments

identify factors that weighed in favor of granting her motion for legal custody, we cannot

say that the trial court’s careful consideration of all of the relevant factors in denying her

motion was arbitrary, unreasonable, or unconscionable. As a result, the trial court did not

31. abuse its discretion in denying Grandmother’s motion for legal custody and her

assignment of error is found not well-taken.

C. The trial court’s grant of permanent custody to the Department is not against the manifest weight of the evidence.

{¶ 71} In her single assignment of error, Mother argues that the trial court erred in

granting permanent custody to the Department. Specifically, she argues that the trial

court only considered one factor described in R.C. 2151.414(D) to find that it was in the

Children’s best interests to be placed in the permanent custody of the Department. She

argues that by considering only one factor and not considering the others that weighed in

her favor, that the trial court’s judgment was against the manifest weight of the evidence.

{¶ 72} “R.C. 2151.414 sets out specific findings a juvenile court must make before

granting an agency’s motion for permanent custody of a child.” In re A.M., 166 Ohio

St.3d 127, 2020-Ohio-2102, 184 N.E.3d 1, ¶ 18. In these cases, the juvenile court “must

find by clear and convincing evidence (1) that one or more of the conditions in R.C.

2151.414(B)(1)(a) through (e) applies and (2) that a grant of permanent custody is in the

child’s best interest.” Id. Mother does not dispute that the Children were in the

Department’s custody for 12 or more months of a consecutive twenty-two-month period,

establishing the predicate condition described in R.C. 2151.414(B)(1)(a). Therefore, we

limit our review to Mother’s argument that the trial court’s best interests findings were

against the manifest weight of the evidence.

32. {¶ 73} The relevant statute, R.C. 2151.414(D)(1), provides:

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 * * *;

(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.

{¶ 74} R.C. 2151.414(D)(1) does not require a juvenile court “to expressly discuss

each of the best-interest factors.” In re A.M. at ¶ 31. “Consideration is all the statute

requires, [but] a reviewing court must be able to discern from the magistrate’s or juvenile

court’s decision and the court’s judgment entry that the court satisfied the statutory

requirement that it consider the enumerated factors[.]” Id. at ¶ 31.

33. {¶ 75} Under a manifest weight standard of review, we must weigh the evidence

and all reasonable inferences, consider the credibility of the witnesses, and determine

whether the trier of fact clearly lost its way in resolving evidentiary conflicts so as to

create such a manifest miscarriage of justice that the decision must be reversed. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). But, while we review the

evidence and consider the witnesses’ credibility, we must be mindful that the juvenile

court, as the trier of fact, is in the best position to weigh evidence and evaluate testimony.

In re P.W., 6th Dist. Lucas No. L-12-1060, 2012-Ohio-3556, ¶ 20. Its discretion 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.”

(Internal quotation marks and citations omitted.) In re C.P., 10th Dist. Franklin No.

08AP-1128, 2009-Ohio-2760, ¶ 10.

{¶ 76} Initially, we note that Mother’s argument that the trial court’s judgment

was against the manifest weight of the evidence is premised on a misstatement of the trial

court’s judgment. Mother argues that the trial court “only found that [the Children] have

a substantial relationship with [her] and that the [Children] were bonded with their foster

parent.” By making only this single finding, she continues, the trial court erred by not

considering “whether Mother substantially remedied the conditions which caused the

children to be removed.” Because she alleges that the conditions that warranted the

34. granting of temporary custody have been removed through her compliance with the case

plan, Mother is arguing that the trial court failed to consider whether legally secure

placement could be achieved without a grant of permanent custody to the agency as

described in R.C. 2151.414(D)(1)(d)—a factor she alleges the trial court did not consider.

Review of the trial court’s judgment reveals that the trial court expressly considered that

factor. As a result, Mother’s argument is without merit.

{¶ 77} Further, Mother’s argument that she has completed all of the case plan

services except for providing independent housing is belied by the record. The case plan

obligated Mother to seek a mental health assessment and to complete all recommended

treatment. Mother’s caseworker, Molnar, testified that although Mother completed the

initial assessment and attended her initial treatment sessions sporadically, Mother had not

attended any treatments for a three-month period leading up to the hearing.

{¶ 78} Additionally, Mother’s argument that obtaining “independent housing was

the only case plan service not fully completed” is misleading. First, not only did

Mother’s case plan require her to find secure housing for the Children, it obligated

Mother to cooperate with the Department on announced and unannounced visits to her

residence and to provide the Department access to her home during its visits. Molnar

testified that Mother would not give her access to her residence and informed her that if

she arrived unannounced, the other adults that she was living with at the time would not

allow her to enter the residence. Second, Mother’s choice to live with five other adults,

35. including at least two men, caused Molnar concern in light of the Children’s ongoing

personal boundary issues with men and the nature of their previous abuse. Considering

this evidence, we find that Mother’s obligation to provide the Children with secure

housing was not simply incomplete, but that Mother had affirmatively acted in direct

contravention of this obligation.

{¶ 79} Finally, as to Mother’s general argument that the trial court erred in finding

that it was in the Children’s best interests to grant permanent custody to the Department,

we find that the court considered all of the necessary factors and, weighing the evidence,

that the trial court did not lose its way in granting the Department’s motion for permanent

custody. In re. A.M. at ¶ 31. Although it was not required to, the trial court’s judgment

expressly noted its consideration of each of the required best interest factors and stated its

conclusion as to the weight of those factors. The evidence presented at the hearing

supports each of the trial court’s conclusions based on those factors, including those that

weigh in favor of denying the Department’s motion and those that weigh in favor of

granting the Department’s motion. Based on that evidence, and its consideration of the

required statutory factors, we cannot say that the trial court lost its way in awarding

permanent custody of the Children to the Department. Just as with Grandmother’s

motion, the trial court merely made a difficult decision that was adverse to Mother’s

wishes.

36. {¶ 80} For these reasons, we find that the trial court’s judgment was not against

the manifest weight of the evidence and that Mother’s single assignment of error is found

not well-taken.

III. Conclusion

{¶ 81} For the foregoing reasons, we find that the trial court did not abuse its

discretion in denying Grandmother’s motion for legal custody and that its granting an

award of permanent custody of the Children to the Department was not against the

manifest weight of the evidence. As a result, we find that Grandmother and Mother’s

respective single assignments of error are found not well-taken and we affirm the

February 7, 2023 judgments of the Erie County Court of Common Pleas, Juvenile

Division.

{¶ 82} Mother and Grandmother are ordered to pay the costs of this appeal

pursuant to App.R. 24.

Judgments affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Gene A. Zmuda, J. ____________________________ JUDGE Myron C. Duhart, J. ____________________________ Charles E. Sulek, P.J. JUDGE CONCUR. ____________________________ JUDGE

37. This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

38.