[Cite as In re J.H., 2025-Ohio-5218.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF: Case Nos. 2025CA00050, 2025CA00051, & 2025CA00052 J.H. Opinion And Judgment Entry J.D. Appeal from the Stark County Court of K.T. Common Pleas, Juvenile Division, Case Nos. 2023JCV00191, 2023JCV00192, & 2023JCV00193
Judgment: Affirmed
Date of Judgment Entry: November 19, 2025
BEFORE: WILLIAM B. HOFFMAN, P.J., ANDREW J. KING, J., & KEVIN W. POPHAM, J.; Appellate Judges
APPEARANCES: Brandon J. Waltenbaugh for Appellee; Richard D. Hixson for Appellant
OPINION
Popham, J.
{¶1} Mother appeals the judgment of the Stark County Court of Common Pleas,
Juvenile Division, terminating her parental rights and granting permanent custody of J.H.,
J.D., and K.T. (“Child 1,” “Child 2,” and “Child 3,” individually; “the Children,” collectively)
to appellee Stark County Job and Family Services (“SCJFS”).
Facts & Procedural History
{¶2} T.T. is the mother (“Mother”) of Child 1, born on February 13, 2014, Child
2, born on January 12, 2016, and Child 3, born on September 25, 2019. J.D. is their father, but did not have contact with SCJFS or the Children throughout the case. SCJFS became
involved with the family in January of 2023 after allegations that Mother’s paramour, D.A.,
repeatedly struck the Children – particularly Child 2, with a belt. Child 2 had visible injuries
consistent with those claims. Child 2 also reported that D.A. knocked Mother down,
pushed a television onto her, and stomped on it. Child 2 further stated that Mother put
“white powder” in her mouth and lost consciousness. The Children stated Mother often
left them unsupervised. Mother and D.A. denied all allegations.
{¶3} SCJFS implemented an out-of-home safety plan. The Children were first
placed with D.A.’s mother but were later returned to Mother and D.A. after they agreed to
participate in counseling and parenting education classes. They began the Goodwill
Home-Based Parenting Program (“Goodwill Home”). However, Mother and D.A. were
both uncooperative with the program, hostile to the Goodwill employees, misrepresented
their works schedules, refused services, and failed to take responsibility for their actions.
At some point during the program, D.A. admitted “whooping” Child 2 with a belt.
{¶4} On February 24, 2023, a SCJFS investigative worker met with Mother and
D.A. to request that they comply with the safety plan, specifically, participating in Goodwill
Home. D.A. refused to participate, and Mother stated she would not leave D.A. or seek
other housing for herself or the Children. Accordingly, on February 24, 2023, SCJFS filed
a neglect and/or dependency complaint for each of the Children.
{¶5} Following a February 27, 2023, shelter care hearing, on March 3, 2023,
Attorney Cole Bond was appointed guardian ad litem (“GAL”). On March 22, 2023, the
magistrate held a dispositional hearing. {¶6} On May 24, 2023, the magistrate held an adjudicatory hearing – at which
appellee moved to delete allegations of neglect. The magistrate granted the motion.
Mother stipulated to a finding of dependency. The matter proceeded to disposition, and
the Children were placed in the temporary custody of SCJFS.
{¶7} Also at the May 2023 hearing, the magistrate found the case plan for both
Mother and D.A. to be appropriate. In the case plan, Mother was ordered to: complete a
parenting assessment and follow all recommendations; remain substance-free; complete
a drug and alcohol assessment and follow any recommendations; submit to random drug
screens; secure and maintain appropriate housing; and obtain employment to have
adequate income to provide for the basic needs of her children. D.A. was ordered to:
obtain a domestic violence risk assessment and follow all recommendations from the
service providers; remain substance-free; complete a drug and alcohol assessment and
follow any recommendations; and submit to random drug screens.
{¶8} The magistrate held dispositional review hearings on August 24, 2023,
January 23, 2024, July 23, 2024, and January 23, 2025.
{¶9} On December 21, 2023, SCJFS filed a motion to extend temporary agency
custody to August 24, 2024. The trial court granted the motion. On July 5, 2024, SCJFS
filed a second motion to extend temporary custody, which the trial court granted, extending
temporary agency custody until February 24, 2025.
{¶10} On October 4, 2024, Mother moved for the return of the Children and
termination of SCJFS involvement. On October 31, 2024, the trial court held a hearing
during which Mother testified she had ended her relationship with D.A. The Children were
returned to Mother under protective supervision, and the case remained open. {¶11} On December 6, 2024, SCJFS again sought temporary custody of the
Children, alleging that D.A. had resumed staying in the home and that Mother failed to
cooperate with services (Goodwill Home, and a case management program) and
counseling for the Children. After a December 9, 2024, shelter-care hearing, the Children
were again placed in temporary custody of SCJFS. Mother’s motion to set aside that order
was denied on March 6, 2025.
{¶12} On January 15, 2025, SCJFS filed a motion for permanent custody of the
Children. The GAL advised the trial court that Child 1 and Child 2 opposed the motion for
permanent custody and disagreed with the recommendation of the GAL. The trial court
appointed separate counsel for the Children.
{¶13} On April 18, 2025, the trial court conducted a hearing on SCJFS’ motion for
permanent custody, at which time the following testimony was adduced.
{¶14} Arwen John (“John”) is the caseworker assigned to the Children. John
testified to the case plan and Mother and D.A.’s progress on the case plan. Mother’s case
plan objectives included competing a parenting assessment and following all
recommendations issued as a result of the assessment, obtaining independent housing,
obtaining employment, and completing the Goodwill Parenting program. Mother
completed the parenting evaluation, obtained housing and employment, and received a
certificate of participation from the Goodwill Parenting program. Despite this, John did not
feel Mother could safely parent due to Mother’s continued involvement with D.A. and his
history of violence toward her and the Children.
{¶15} D.A. refused to engage in or complete any of the items on his case plan. In
early 2024, Mother told John that she ended her relationship with D.A. At that time, John believed Mother accepted that D.A. could not be around the Children. Because Mother
was doing well on her case plan objectives, the Children were returned to her in October
of 2024, with protective supervision maintained by SCJFS. John made regular home visits
with the family.
{¶16} John became concerned about the Children during her home visits. Mother
denied that any abuse by D.A. had occurred and accused SCJFS of fabricating the abuse
allegations. John felt this put Mother “right back to square one of nothing happened, he
[D.A.] never hurt [the Children], and its all lies.” Further, even when John did not ask the
Children about D.A., the Children proactively and repeatedly told John that nobody lived
in their house except for the Children and Mother. Mother also resisted unannounced
home visits. Additionally, Mother cancelled numerous appointments with the Goodwill
Home program and was going to be terminated from the program for her non-compliance.
{¶17} John received a call with information that a mandated reporter saw D.A. at
Mother’s home when the Children were there. After this report, John spoke to both Child
1 and Child 2 at school. Both Child 1 and Child 2 disclosed that Mother was currently in a
romantic relationship with D.A.. Further, both Child 1 and Child 2 stated there was a recent
physical altercation between Mother and D.A. Counsel for Mother objected to John’s
testimony regarding the tip from the mandatory reporter and John’s testimony about what
the Children told her. The trial court overruled Mother’s objections.
{¶18} John described how Mother’s attitude fluctuated throughout the case. First,
Mother denied there was ever any abuse by D.A. When Mother broke up with D.A., she
accepted some responsibility and stated she wanted to protect the Children from their
abuser. Near the end of the Goodwill Parenting program, Mother again denied there was any abuse by D.A. John does not believe Mother has successfully completed her case
plan and does not believe it would be safe to return the Children to her. John also believes
the agency made reasonable efforts to assist with case plan services that would have
resulted in reunification if they had been successfully completed.
{¶19} John confirmed that the Children were in the temporary custody of SCJFS
in a period of time in excess of twelve of the past twenty-two months (from May 24, 2023,
to October 31, 2024, and from December 9, 2024, until April 17, 2025).
{¶20} Dr. Aimee Thomas (“Thomas”), a licensed psychologist and professional
clinical counselor, conducted the parenting evaluation of Mother. Thomas testified Mother
identified herself as a “wonderful mother” and denied any concerns about her relationship
with D.A. However, Mother acknowledged that she permitted D.A. to spank the children,
and these spankings left marks on the Children. Thomas found Mother lacked insight into
the danger posed by D.A. Thomas diagnosed Mother with dependent personality disorder
and recommended Mother participate in individual counseling focused on building positive
relationships. Thomas opined that Mother should not regain custody of the Children
unless D.A. completed his case plan, or D.A. otherwise ceased to pose a threat to the
Children. Thomas was concerned that, if the Children went back to Mother, D.A. would
be around them, because Thomas had very little confidence that Mother would terminate
her relationship with D.A.
{¶21} Jennifer Fire (“Fire”) is the supervisor of the Goodwill Parenting program.
Fire testified that while Mother attended the classroom portion of the program and received
a certificate of participation/completion, Fire was concerned about Mother’s perspective
on her relationship with D.A. Mother confirmed to Fire that D.A. threw a television on top of her, yet she told Fire that the incident “really wasn’t that bad” and D.A. “was a great
partner.” Fire attempted to help Mother understand that she and the Children are not safe
in these types of situations, but Fire felt she was not successful in getting Mother to
understand. When Mother completed the Goodwill Parenting program in September in
2024, she did not complete several of the program goals, i.e., making good decisions and
keeping inappropriate people away from the Children.
{¶22} At the conclusion of the Goodwill Parenting program, Fire made the
following recommendations for Mother: Mother attend individual counseling weekly;
Mother participate in family counseling with the Children; Mother take the Children to
counseling; Mother maintain employment and housing; Mother complete the Goodwill
Home program; and Mother complete the parenting case management program through
Goodwill.
{¶23} On October 7, 2024, Mother started the Goodwill Home program. However,
Fire testified Mother’s participation in the Goodwill Home program was brief. In eight
weeks, Mother cancelled the home visits six times. Regarding the parenting case
management program, Mother cancelled four meetings and, thus, was terminated from
that program. Fire does not believe Mother received any benefit from either the case
management program or the Goodwill Home program due to Mother’s lack of participation
and high cancellation rate. Fire did not believe that Mother terminated her relationship
with D.A. because Mother continued to defend D.A. Fire opined the Children cannot be
safely returned to Mother.
{¶24} Carrie Schnirring (“Schnirring”) completed a trauma evaluation of Child 2.
Thus, the statements Child 2 made to her were for purposes of medical diagnoses and treatment. Child 2 told Schnirring that she wanted Mother and D.A. to “learn their lesson
so she could go home.” Child 2 reported to Schnirring that D.A. repeatedly hit her and
Child 1 so hard with a belt that they had bruises on their backs, legs, and arms. Child 2
told Schnirring that D.A. would throw Mother to the ground so hard that Mother would also
have bruises. Child 2 described to Schnirring an incident during which Child 2 saw D.A.
throw a television on top of Mother and stomp on it so hard that Mother passed out. As
part of the evaluation process, Schnirring assessed Child 2’s mastery of the difference
between a truth and a lie. Schnirring believed Child 2 understood the difference between
a truth and a lie.
{¶25} Mother testified that she complied with her case plan by completing an
evaluation at Lighthouse, completing an evaluation at CommQuest, submitting negative
drug tests, maintaining employment, maintaining housing, and participating in Goodwill
Parenting. Mother stated she engaged in the Goodwill Home program.
{¶26} When asked about D.A., Mother testified he “would never abuse them [the
Children] or hit them in the face or anything like a belt like how they were saying because
that was never true.” Mother confirmed that D.A. threw a television on top of her and
stomped on the television.
{¶27} When Mother was asked when her relationship with D.A. ended, Mother
stated in ended in November or December of 2024 (after the Children were returned to
her home). However, Mother subsequently testified that she was not in a relationship with
D.A. at that time. Mother stated that, after October 31, 2024, D.A. was not living in her
home, did not come to her home, and never saw the Children. Mother testified to the
report made to SCJFS from a mandatory reporter, and stated she knew who the mandatory reporter was. Mother stated that when the mandatory reporter saw D.A.’s car
in Mother’s driveway, it was actually D.A.’s grandmother who was visiting Mother and the
Children. Mother testified she never engaged in joint counseling with the children because
“they were supposed to contact [her], but [she] never got contacted.” Mother stated that,
other than the counseling, SCJFS has never asked her to engage in any additional
services.
{¶28} On cross-examination, Mother testified that at least one of the Children saw
D.A. throw the television on her. Mother briefly left the home after that incident, but
returned home with the Children because she felt like she had nowhere else to go. Mother
testified she and D.A. “broke up on a good note not a bad note,” despite his violence and
anger issues. Mother stated the Children were lying when they said D.A. was around the
house after they returned home in October of 2024. Mother believes John was “harassing”
the Children so they had to lie.
{¶29} At the best interest portion of the trial, John testified about each of the
Children. Child 1 is developmentally on target, but has a severe allergy to antibiotics.
Child 1 recently started counseling. Child 1 wants to return home to Mother but is scared
of D.A. Child 2 is in trauma-based counseling. Child 3 is developmentally on-target.
{¶30} Early in this case, all three children were sent to live with a maternal aunt
in Akron, but that placement was disrupted because the maternal aunt would not send the
children to school. Currently, the Children are in the same foster home. They are bonded
to each other and to the foster family. John believes there is a bond between Mother and
the Children. However, she also believes the Children will benefit from permanency,
stability, and adoption. Further, despite any damage that will occur from severing the parental relationship with Mother (particularly as to Child 1 and Child 2), the benefit of
permanent custody outweighs the damage to the Children. John believes it is in the best
interest of the Children for permanent custody to be granted to SCJFS.
{¶31} Counsel for the Children questioned John. She confirmed that though Child
1 stated he wanted to go back with Mother, this was primarily because he did not want to
move around, and he thought, if he didn’t go back with Mother, he would continually have
to move around to new foster homes. Child 2 informed both John and her attorney that
she wants to live with people she knows from church.
{¶32} The GAL submitted a final report, in which he opined it was in the best
interest of the Children for permanent custody to be granted to SCJFS. In his report, the
GAL stated as follows, “I have spoken with each individual child at school, and each child
has reported that there has been contact with [D.A.] during the period of time that they
were returned to Mother’s home.” Further, “during these interviews, it appeared evident
to me that the children had been coached to not tell anyone that [D.A.] had been in the
home.”
{¶33} On April 30, 2025, the trial court issued a judgment entry containing findings
of fact and conclusions of law. The trial court found the following: the Children have been
in the temporary custody of SCJFS for a period greater than 12 of the last 22 months; the
Children cannot be placed with either parent or should not be placed with either parent;
and it is in the best interest of the Children that permanent custody be granted to SCJFS.
{¶34} Mother appeals the April 30, 2025, judgment of the Stark County Court of
Common Pleas, Juvenile Division, and assigns the following as error: {¶35} “I. THE TRIAL COURT ERRED IN ADMITTING INADMISSIBLE HEARSAY
AND RELYING ON THE SAME IN GRANTING PERMANENT CUSTODY TO THE
AGENCY.”
{¶36} “II. TO THE EXTENT THAT MOTHER’S TRIAL COUNSEL FAILED TO
MAKE ADEQUATE HEARSAY OBJECTIONS TO THE STATEMENTS OF THE MINOR
CHILDREN AND ANONYMOUS REPORTER, MOTHER’S TRIAL COUNSEL WAS
INEFFECTIVE.”
{¶37} “III. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE
CHILDREN.”
Permanent Custody
{¶38} “[T]he right to raise [a child] is an ‘essential’ and ‘basic’ civil right.” In re
Murray, 52 Ohio St.3d 155, 157 (1990), quoting Stanley v. Illinois, 405 U.S. 645 (1972).
An award of permanent custody must be based on clear and convincing evidence. R.C.
2151.414(B)(1).
{¶39} Clear and convincing evidence is that evidence “which will produce in the
mind of the trier of facts a firm belief or conviction as to the allegations sought to be
established.” Cross v. Ledford, 161 Ohio St. 469, 477 (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. If some competent and credible evidence going to all
the essential elements of the case supports the trial court’s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. C.E.
Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978).
{¶40} 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 Co., Inc., v. Cleveland, 10
Ohio St.3d 77, 80 (1984). Deferring to the trial court on matters of credibility is “crucial in
a child custody case, where there may be much evident in the parties’ demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,
419 (1997).
{¶41} R.C. 2151.414 sets forth 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 of the filing of a motion for permanent custody of a child by a
public children services agency.
{¶42} Following the hearing, R.C. 2151.414(B)(1) authorizes the 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, has not been in the temporary custody of the children services agencies for
twelve or more months of a consecutive twenty-two month period, and the child cannot be
placed with either of the child’s parents within a reasonable time or should not be placed
with the child’s parents; (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; (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; or (e) the child or another child in the custody of the parent or parents from whose custody
the child has been removed has been adjudicated an abused, neglected, or dependent
child on three separate occasions by any court in this state or another state.
{¶43} 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, a trial court
will usually determine whether one of the circumstances delineated in R.C.
2151.414(B)(1)(a) through (e) is present before proceeding to a determination regarding
the best interest of the child. In this case, the trial court made findings pursuant to R.C.
2151.414(B)(1)(a) (reasonable time) and R.C. 2151.414(B)(1)(d) (temporary custody of
the agency for twelve or more months of a consecutive twenty-two-month period).
I.
{¶44} In her first assignment of error, Mother contends the trial court committed
error in admitting two categories of hearsay statements: (1) the testimony of John that the
Children told her D.A. was at Mother’s home after the Children were returned home in
October of 2024; and (2) the testimony of John that an anonymous source/mandatory
reporter called SCJFS to report that D.A. had contact with the Children after they returned
to Mother’s home.
R.C. 2151.414(B)(1)(d)
{¶45} The trial court determined, pursuant to R.C. 2151.414(B)(1)(d), that the
Children have been in the temporary custody of the agency for a period of time in excess
of twelve of the prior twenty-two consecutive months. John testified the Children were in
the temporary custody of SCJFS in a period of time in excess of twelve of the past twenty- two months (from May 24, 2023, to October 31, 2024, and from December 9, 2024, until
April 17, 2025). Mother does not challenge this finding by the trial court.
{¶46} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are
alternative findings, each is independently sufficient to use as a basis to grant the motion
for permanent custody. In re Dalton, 2007-Ohio-5805, ¶ 88 (5th Dist.). This finding alone
in conjunction with a best interest finding is sufficient to support the grant of permanent
custody. In re Calhoun, 2008-Ohio-5458, ¶ 45 (5th Dist.). Because Mother has not
challenged the twelve-of-twenty-two-month finding, we need not address the merits of her
claim regarding the trial court’s determination under 2151.414(B)(1)(a) (reasonable time).
However, as detailed below, even considering Mother’s argument, we find the trial court
did not commit error in its determination under R.C. 2151.414(B)(1)(a).
R.C. 2151.414(B)(1)(a)
{¶47} Mother argues the trial court’s determination that the Children could not or
should not be placed with her in a reasonable time was in error because the trial court
inappropriately relied upon hearsay statements to make this determination.
{¶48} Pursuant to R.C. 2151.414(E), the trial court must consider all relevant
evidence before determining the Children cannot be placed with either parent within a
reasonable time or should not be placed with either parent. The statute also specifically
provides that if the trial court determines, by clear and convincing evidence, at a hearing
that one or more of the factors listed in (1) - (15) exist, the court shall enter a finding that
the Children cannot be placed with either parent within a reasonable time or should not be
placed with either parent. The existence of one factor alone will support a finding that the Children cannot be placed with the parent within a reasonable time. In re William S., 75
Ohio St.3d 95 (1996).
{¶49} As a general rule, all relevant evidence is admissible. Evid.R. 402 and 802.
Hearsay is inadmissible in hearings on motions for permanent custody unless an exception
to the hearsay rule applies. In re W.R., 2012-Ohio-382, ¶ 22 (12th Dist.). However, “it is
well-established that as the fact-finder, a trial court is presumed to have considered only
properly admissible evidence unless the record affirmatively demonstrates otherwise.” In
re A.F., 2012-Ohio-2958, ¶ 33 (12th Dist.). The admission or exclusion of relevant
evidence rests in the sound discretion of the trial court. State v. Sage, 31 Ohio St.3d 173,
173 (1987). This Court’s task is to look at the totality of the circumstances and determine
whether the trial court acted unreasonably, arbitrarily, or unconscionably in allowing or
excluding the disputed evidence. In re Z.G.A.A., 2024-Ohio-326, ¶ 71 (5th Dist.).
{¶50} An admission by a party-opponent is not considered hearsay. Evid.R. 801.
An admission by a party-opponent is a statement that “is offered against a party and is (a)
his own statement, in either his individual or representative capacity …”. Evid.R.
801(D)(2). The Supreme Court of Ohio has held, “a child who is the subject of a juvenile
court proceeding to terminate parental rights is a party to that proceeding, and, therefore,
is entitled to independent counsel in certain circumstances.” In re Williams, 2004-Ohio-
1500 at ¶ 29.
{¶51} In this case, the Children are juveniles subject to a court proceeding to
terminate parental rights, and are thus parties to the case. The trial court appointed
independent counsel to represent the Children because both Child 1 and Child 2 stated
they wanted to return to Mother’s home. The Children’s trial counsel examined the witnesses on behalf of the Children. The Children’s trial counsel examined John on behalf
of the children. Counsel asked John to confirm that Child 2 told her that D.A. was in
Mother’s home in December of 2024, and asked John to confirm that Child 1 told her that
D.A. was in Mother’s home after the Children returned home in 2024 and showed Child 1
how to play a video game. John responded by confirming what the Children told her.
John’s testimony was not hearsay because the statements were admissions by party-
opponents.
{¶52} Additionally, Mother is unable to demonstrate how the admission of this
alleged hearsay evidence subjected to her to any resulting prejudice. John’s testimony
about what the Children said, and her testimony about what an anonymous source
reported, was cumulative to other evidence contained within the record. The GAL’s report
contained information about what the Children reported along with his impression that the
Children were coached not to report this information to him. “[G]iven the guardian’s role
and the requirements that [he] explain [his] investigation and the basis for [his]
recommendation, [his] report and testimony may necessarily include information about
what other people told [him].” DiDonato v. DiDonato, 2016-Ohio-1511, ¶ 79 (5th Dist.),
quoting Sypherd v. Sypherd, 2012-Ohio-2615 (9th Dist.). Further, John specifically
testified that circumstances other than the Children’s verbal reports to her caused her
concern during the home visits, i.e., Mother’s strong objections to Mother’s unannounced
home visits and the Children’s general attitude of being worried when John visited.
{¶53} Mother herself testified she knew who the anonymous/mandatory source
was, testified that she knew what they reported to SCJFS (seeing D.A.’s car in Mother’s
driveway), and testified as to why this information should not have been used to remove the Children from the home (because it was allegedly D.A.’s grandmother at the house,
not him). Because the alleged hearsay testimony about the mandatory reporter’s “tip” to
SCJFS is cumulative, there is no prejudice as a result of its admission.
{¶54} Because this testimony is cumulative to other evidence in the record, there
is no prejudice as a result of its admission. In re M.G., 2023-Ohio-1316, ¶ 36 (12th Dist.);
In re A.G., 2024-Ohio-1846, ¶ 46 (3rd Dist.).
{¶55} Further, “an error in the admission of evidence is not ground for reversal
unless substantial rights of the complaining party were affected or it appears that
substantial justice was not done.” In re Z.G.A.A., 2024-Ohio-326, ¶ 69 (5th Dist.), quoting
Petti v. Perna, 86 Ohio App.3d 508, 514 (3rd Dist.) In “determining whether a substantial
right of a party has been affected, the reviewing court must decide whether the trier of fact
would have reached the same decision had the error not occurred.” Id.
{¶56} Assuming arguendo that that the trial court committed error in admitting
hearsay testimony, we find the trial court would have reached the same conclusion on
permanent custody, as this determination was not based solely on the hearsay testimony.
The trial court specifically cited factors other than the hearsay testimony in its
determination that the Children could not be returned to Mother or should not be returned
to Mother, including: Thomas’ testimony about Mother’s failure to understand the gravity
of the abusive relationship with D.A.; Fire’s testimony that Mother minimized domestic
violence concerns by continually defending D.A. and stating her relationship with D.A. was
“great”; both John’s and Fire’s testimony that, despite her completion of the Goodwill
Parenting program, there were lingering concerns about Mother’s ability to keep the
Children safe; Fire’s testimony that, even at the conclusion of the Goodwill Parenting program, Mother prioritized her relationship with D.A. despite Mother claiming they were
no longer together; John’s testimony that Mother reverted to the position that the Children
were lying about the abuse; John’s testimony that Mother did not successfully complete
her case plan; Fire’s testimony that Mother cancelled six out of eight appointments with
the Goodwill Home program and was terminated from the case management program for
excessive cancellations; Mother’s own testimony denying that D.A. ever hit the Children
and calling the Children liars.
{¶57} Thus, Mother has not established that admission of the alleged hearsay
testimony undermines confidence in the outcome of the proceeding. There is no indication
the trial court would have made a different determination without the alleged hearsay
testimony, particularly since the trial court listed multiple other factors it took into
consideration in making its decision. A review of the trial court’s judgment entry
demonstrates that its determination was not based solely on either: (1) the report from the
anonymous source that the Children saw D.A. or (2) the Children’s reports to John that
D.A. was at the home.
{¶58} Mother’s first assignment of error is overruled.
II.
{¶59} In her second assignment of error, Mother raises a claim of ineffective
assistance of counsel for the failure of her trial counsel to object to the hearsay testimony
of the Children and the anonymous source.
{¶60} “A parent is entitled to the effective assistance of counsel in cases involving
the involuntary termination of his or her parental rights.” In re J.J., 2024-Ohio-4558, ¶ 30
(5th Dist.), quoting In re B.J. & L.J., 2016-Ohio-7440, ¶ 68 (12th Dist.). In a permanent custody proceeding, this Court applies the same test for ineffective assistance of counsel
as we apply in criminal cases. Id. at 31. First, we must determine whether counsel’s
assistance was ineffective, i.e., whether counsel’s performance fell below an objective
standard of reasonable representation and violated any of his or her essential duties to
the client. Strickland v. Washington, 466 U.S. 668 (1984). If we find ineffective assistance
of counsel, we must then determine whether or not the defense was actually prejudiced
by counsel’s ineffectiveness such that the reliability of the outcome of the proceeding is
suspect. Id. This requires a showing that there is a reasonable probability that, but for
counsel’s unprofessional error, the outcome of the trial would have been different. Id.
{¶61} First, trial counsel for Mother did object to the hearsay testimony. Thus, trial
counsel was not deficient for failing to object. Second, as discussed above, because
Mother has not demonstrated John’s testimony was hearsay, she has not shown that her
counsel’s performance was deficient. Further, even if the testimony was hearsay, Mother
has not demonstrated the trial court’s permanent-custody determination was based solely
on those circumstances, and therefore has not established there is a reasonable
probability that, but for counsel’s alleged error, the outcome of the proceeding would have
been different even if the trial court had not heard the alleged hearsay testimony.
{¶62} Mother’s second assignment of error is overruled.
III.
{¶63} In her final assignment of error, Mother contends the trial court’s finding that
it is in the best interest of the Children for permanent custody to be granted to SCJFS to
be in error. {¶64} We have frequently noted, “[t]he 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, 2000 WL 1700073, * 3 (5th Dist. Nov. 13, 2000), citing In re Awkal, 95 Ohio
App.3d 309, 316 (8th Dist. 1994).
{¶65} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including, but
not limited to the following: (1) 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; (2) 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; (3) the custodial history of the child; (4) the child’s need for a legally secure
placement and whether that type of placement can be achieved without a grant of
permanent custody; and (5) whether any of the factors in divisions (E)(7) to (11) of this
section apply in relation to the parents and child.
{¶66} The trial court must consider all the elements in R.C. 2151.414(D), as well
as other relevant factors. There is not one element that is given greater weight than the
others pursuant to the statute. In re Schaefer, 2006-Ohio-5513, ¶ 56. In re Schaefer
made it clear that a trial court’s statutory duty, when determining whether it is in the best
interest of a child to grant permanent custody to an agency, does not include finding by
clear and convincing evidence that no suitable relative was available for placement. Id.
R.C. 2151.414 “requires the court to find the best option for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a) through (d). The statute does not
make the availability of a placement that would not require a termination of parental rights
an all-controlling factor. The statute does not even require the court to weigh that factor
more heavily than others.” Id. at ¶ 64.
{¶67} The focus on the “best interest” determination is upon the child, not the
parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a
grant of permanent custody would have upon the parents. In re Awkal, 95 Ohio App.3d
309, 316 (8th Dist. 1994).
{¶68} Mother first argues the trial court improperly considered the hearsay
testimony of the Children and the anonymous reporter in its best interest determination.
However, the trial court did not cite either the Children’s, or the anonymous reporter’s,
statements in either its “Findings of Fact” or “Conclusions of Law” section for best interest.
There is no evidence the trial court considered the hearsay testimony in its best interest
determination. Thus, Mother has failed to demonstrate how the admission of such
evidence subjected her to any resulting prejudice. In re K.B., 2014-Ohio-3654, ¶ 83 (12th
Dist.) (admission of hearsay in permanent custody case, even if error, is not prejudicial
unless it is shown that the judge relied on improper evidence in making his or her decision).
{¶69} Further, as detailed above, the Children are parties to this case. The
Children’s statements are admissible to show that, although their wishes were to return to
Mother, granting SCJFS permanent custody was in their best interest. Finally, Mother fails
to show prejudice by the admission of any of the alleged hearsay evidence in the trial
court’s determination of best interest. There is no indication the trial court would have made a different determination without this testimony, particularly since there are multiple
other factors taken into consideration in the best interest determination.
{¶70} Mother also contends the trial court committed error in finding granting
permanent custody to SCJFS was in the best interest of the Children because of the
wishes of the Children and the bond the Children have with Mother.
{¶71} Based on Child 1’s and Child 2’s statements that they wanted to go home
with Mother, the trial court appointed the Children independent counsel. Counsel for the
Children did not present any new evidence that returning the Children to Mother was in
their best interest, nor did counsel present any additional statements by the Children
expressing their wishes to be reunited with Mother. Rather, during the best interest portion
of the hearing, counsel for the Children indicated that Child 2 no longer wanted to go live
with Mother but rather wanted to go live with her best friend from church. Further, that
Child 1 only wanted to go back with Mother because he thought that, if he stayed in foster
care, he would have to continually move homes.
{¶72} We find the trial court did not commit error in finding that granting permanent
custody to SCJFS is in the best interest of the Children. John testified it is in the best
interest of the Children for permanent custody to be granted to SCJFS. While Child 1
initially wanted to return to Mother, he only wanted to do so because he did not want to
continually move homes. John also testified that Child 2 no longer wants to return to
Mother; she wants to go live with friends from church. John testified the Children are doing
well, and are all together at a stable placement. They are bonded to each other, and
bonded to the foster family. The GAL also opined in his report that it is in the best interest
of the Children for permanent custody to be granted to SCJFS. While John testified there is a bond between the Children and Mother, she also testified that any damage that would
occur from severing that bond would be outweighed by the benefits of permanency and
stability.
{¶73} We find the trial court properly considered and weighed the factors in R.C.
2151.414(D) and the trial court’s conclusion that the granting of permanent custody to
SCJFS is in the best interest of the Children is supported by competent and credible
evidence.
{¶74} Based on the foregoing, Mother’s assignments of error are overruled. The
April 25, 2025, judgment of the Stark County Court of Common Pleas, Juvenile Division,
is affirmed. Costs to Mother.
By: Popham , J.
Hoffman, P.J. and
King, J.