[Cite as In re J.M., 2017-Ohio-1027.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: J.M. C.A. No. 28315
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 14-02-112
DECISION AND JOURNAL ENTRY
Dated: March 22, 2017
SCHAFER, Judge.
{¶1} Appellant, James M. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated his parental rights and placed his
minor child in the permanent custody of CSB. This Court affirms.
I.
{¶2} Father is the biological father of J.M., born February 17, 2014. Although the
child’s mother (“Mother”) appealed from the trial court’s judgment, this Court dismissed her
appeal because she failed to file a brief in compliance with this Court’s local rules.
{¶3} J.M. was removed from Mother’s custody shortly after his birth because Mother
had permanently lost custody of three older children in prior juvenile court cases. As in the cases
involving Mother’s older children, CSB remained concerned that Mother lacked stable income
and housing and that she suffered from untreated mental health and substance abuse problems.
J.M. was later adjudicated a dependent child. 2
{¶4} When this case began, Mother and Father resided in separate homes and Father
had no other biological children. J.M. was initially placed in the custody of Father under an
order of protective supervision by CSB, which further required that Mother not reside in the
home and that all visits between Mother and J.M. be supervised by Father or another adult
approved by CSB. Approximately five months later, however, J.M. was removed from Father’s
custody after a physical altercation between Father and Mother that involved substance abuse
and physical violence by both parents.
{¶5} While J.M. was placed in the temporary custody of CSB for more than one year,
the parents made little progress toward reunification. They had both been referred to ongoing
individual counseling based on their multiple mental health diagnoses. Nevertheless, neither
parent followed through with regular mental health treatment. Their on and off relationship also
continued to be plagued by untreated alcohol abuse and domestic violence, and neither parent
had stable income or housing. Moreover, neither parent visited J.M. on a consistent basis.
{¶6} On January 20, 2016, CSB moved for permanent custody of J.M. Following a
hearing on the motion and Father’s alternative motion to place J.M. in the legal custody of the
paternal step-grandmother, the trial court terminated parental rights and placed J.M. in the
permanent custody of CSB. Father appeals and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE CLEAR AND CONVINCING EVIDENCE WAS NOT PRESENTED TO WARRANT A FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE MINOR CHILD PURSUANT TO [R.C.] 2151.414(D), AND THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 3
{¶7} Father’s sole assignment of error is that the evidence did not support the trial
court’s permanent custody decision. Before a juvenile court may terminate parental rights and
award permanent custody of children to a proper moving agency it must find clear and
convincing evidence of both prongs of the permanent custody test: (1) that the children are
abandoned; orphaned; have been in the temporary custody of the agency for at least 12 months of
a consecutive 22-month period; they or another child in a parent’s custody have been adjudicated
abused, neglected, or dependent on three separate occasions; or they cannot be placed with either
parent within a reasonable time or should not be placed with either parent, based on an analysis
under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best
interest of the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1)
and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶8} The trial court found that CSB satisfied the first prong of the permanent custody
test because the child had been in the temporary custody of CSB for more than 12 of the prior 22
months. Father does not challenge that finding but confines his assignment of error to the trial
court’s best interest determination.
{¶9} Although Father assigns error to the trial court’s best interest finding, he argues
primarily that CSB failed to make reasonable efforts to reunify J.M. with Father or a relative.
Father did not raise this issue in the trial court, nor has he separately assigned it as error. At the
permanent custody hearing, the trial court was not required to determine whether CSB had made
reasonable efforts toward reunification, given that it had made prior reasonable efforts findings
and neither parent argued at the hearing that CSB had failed to make reasonable reunification
efforts in this case. See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41-43; In re P.W.T., 4
9th Dist. Wayne No. 11CA0020, 2011-Ohio-5858, ¶ 11; In re K.H., 9th Dist. Summit No. 22765,
2005-Ohio-6323, ¶ 9-10.
{¶10} Consequently, this Court confines its review to the trial court’s conclusion that
permanent custody was in the best interest of J.M. When determining the child’s best interest
under R.C. 2151.414(D), the juvenile court must consider all relevant factors, including the
interaction and interrelationships of the child, his wishes, the custodial history of the child, and
his need for permanence in his life. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-
Ohio-6284, ¶ 11.
{¶11} Since J.M. was removed from Father’s temporary custody during July 2014,
Father’s interaction with him had been limited to visits that were supervised or monitored by
CSB because Father had not completed any of the reunification requirements of the case plan.
Notably, he had refused to engage in substance abuse, mental health, or anger management
treatment because he did not believe that he had a problem. CSB presented evidence, however,
that Father continued to abuse alcohol and become involved in physical altercations throughout
the case. Although Father told CSB otherwise, there was evidence that he and Mother had
continued their violent relationship and were living together. As recently as two months before
the hearing, police responded to a loud physical altercation between Father and Mother outside
their home. One police officer who responded to the scene testified that both parents were
intoxicated and that he had to physically separate them.
{¶12} Father points to evidence that his visits with J.M. went well and that the child
would be happy to see him, but CSB had also presented evidence that Father did not visit J.M. on
a consistent basis. In fact, because both parents had missed so many visits, CSB would not 5
transport J.M. to each visit until it received confirmation that one or both parents would attend
the visit.
{¶13} Father asserts that his step-grandmother should have been awarded legal custody
of J.M., but the grandmother had not developed a bond with the child. The grandmother visited
J.M. a few times during this case, but witnesses testified that there was minimal interaction
between them. At the time of the hearing, the grandmother had not visited J.M. for several
months.
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re J.M., 2017-Ohio-1027.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
IN RE: J.M. C.A. No. 28315
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DN 14-02-112
DECISION AND JOURNAL ENTRY
Dated: March 22, 2017
SCHAFER, Judge.
{¶1} Appellant, James M. (“Father”), appeals from a judgment of the Summit County
Court of Common Pleas, Juvenile Division, that terminated his parental rights and placed his
minor child in the permanent custody of CSB. This Court affirms.
I.
{¶2} Father is the biological father of J.M., born February 17, 2014. Although the
child’s mother (“Mother”) appealed from the trial court’s judgment, this Court dismissed her
appeal because she failed to file a brief in compliance with this Court’s local rules.
{¶3} J.M. was removed from Mother’s custody shortly after his birth because Mother
had permanently lost custody of three older children in prior juvenile court cases. As in the cases
involving Mother’s older children, CSB remained concerned that Mother lacked stable income
and housing and that she suffered from untreated mental health and substance abuse problems.
J.M. was later adjudicated a dependent child. 2
{¶4} When this case began, Mother and Father resided in separate homes and Father
had no other biological children. J.M. was initially placed in the custody of Father under an
order of protective supervision by CSB, which further required that Mother not reside in the
home and that all visits between Mother and J.M. be supervised by Father or another adult
approved by CSB. Approximately five months later, however, J.M. was removed from Father’s
custody after a physical altercation between Father and Mother that involved substance abuse
and physical violence by both parents.
{¶5} While J.M. was placed in the temporary custody of CSB for more than one year,
the parents made little progress toward reunification. They had both been referred to ongoing
individual counseling based on their multiple mental health diagnoses. Nevertheless, neither
parent followed through with regular mental health treatment. Their on and off relationship also
continued to be plagued by untreated alcohol abuse and domestic violence, and neither parent
had stable income or housing. Moreover, neither parent visited J.M. on a consistent basis.
{¶6} On January 20, 2016, CSB moved for permanent custody of J.M. Following a
hearing on the motion and Father’s alternative motion to place J.M. in the legal custody of the
paternal step-grandmother, the trial court terminated parental rights and placed J.M. in the
permanent custody of CSB. Father appeals and raises one assignment of error.
II.
ASSIGNMENT OF ERROR
THE CLEAR AND CONVINCING EVIDENCE WAS NOT PRESENTED TO WARRANT A FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTEREST OF THE MINOR CHILD PURSUANT TO [R.C.] 2151.414(D), AND THE DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 3
{¶7} Father’s sole assignment of error is that the evidence did not support the trial
court’s permanent custody decision. Before a juvenile court may terminate parental rights and
award permanent custody of children to a proper moving agency it must find clear and
convincing evidence of both prongs of the permanent custody test: (1) that the children are
abandoned; orphaned; have been in the temporary custody of the agency for at least 12 months of
a consecutive 22-month period; they or another child in a parent’s custody have been adjudicated
abused, neglected, or dependent on three separate occasions; or they cannot be placed with either
parent within a reasonable time or should not be placed with either parent, based on an analysis
under R.C. 2151.414(E); and (2) that the grant of permanent custody to the agency is in the best
interest of the children, based on an analysis under R.C. 2151.414(D). See R.C. 2151.414(B)(1)
and 2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996).
{¶8} The trial court found that CSB satisfied the first prong of the permanent custody
test because the child had been in the temporary custody of CSB for more than 12 of the prior 22
months. Father does not challenge that finding but confines his assignment of error to the trial
court’s best interest determination.
{¶9} Although Father assigns error to the trial court’s best interest finding, he argues
primarily that CSB failed to make reasonable efforts to reunify J.M. with Father or a relative.
Father did not raise this issue in the trial court, nor has he separately assigned it as error. At the
permanent custody hearing, the trial court was not required to determine whether CSB had made
reasonable efforts toward reunification, given that it had made prior reasonable efforts findings
and neither parent argued at the hearing that CSB had failed to make reasonable reunification
efforts in this case. See In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, ¶ 41-43; In re P.W.T., 4
9th Dist. Wayne No. 11CA0020, 2011-Ohio-5858, ¶ 11; In re K.H., 9th Dist. Summit No. 22765,
2005-Ohio-6323, ¶ 9-10.
{¶10} Consequently, this Court confines its review to the trial court’s conclusion that
permanent custody was in the best interest of J.M. When determining the child’s best interest
under R.C. 2151.414(D), the juvenile court must consider all relevant factors, including the
interaction and interrelationships of the child, his wishes, the custodial history of the child, and
his need for permanence in his life. See In re R.G., 9th Dist. Summit Nos. 24834, 24850, 2009-
Ohio-6284, ¶ 11.
{¶11} Since J.M. was removed from Father’s temporary custody during July 2014,
Father’s interaction with him had been limited to visits that were supervised or monitored by
CSB because Father had not completed any of the reunification requirements of the case plan.
Notably, he had refused to engage in substance abuse, mental health, or anger management
treatment because he did not believe that he had a problem. CSB presented evidence, however,
that Father continued to abuse alcohol and become involved in physical altercations throughout
the case. Although Father told CSB otherwise, there was evidence that he and Mother had
continued their violent relationship and were living together. As recently as two months before
the hearing, police responded to a loud physical altercation between Father and Mother outside
their home. One police officer who responded to the scene testified that both parents were
intoxicated and that he had to physically separate them.
{¶12} Father points to evidence that his visits with J.M. went well and that the child
would be happy to see him, but CSB had also presented evidence that Father did not visit J.M. on
a consistent basis. In fact, because both parents had missed so many visits, CSB would not 5
transport J.M. to each visit until it received confirmation that one or both parents would attend
the visit.
{¶13} Father asserts that his step-grandmother should have been awarded legal custody
of J.M., but the grandmother had not developed a bond with the child. The grandmother visited
J.M. a few times during this case, but witnesses testified that there was minimal interaction
between them. At the time of the hearing, the grandmother had not visited J.M. for several
months. Moreover, the grandmother lived in the home of a relative who was not willing to have
J.M. placed in her home.
{¶14} After temporarily living in different relative placements, J.M. was placed with a
foster family that was interested in adopting him. J.M. was doing well in that home and had
become bonded with the members of that family. The guardian ad litem described the home as
an appropriate and positive environment for J.M.
{¶15} Because J.M. was only two years old at the time of the hearing, the guardian ad
litem spoke on his behalf and expressed her conclusion that permanent custody was in his best
interest. She explained that the parents had not resolved any of their parenting problems.
Specifically about Father, the guardian ad litem expressed concerns that he had not addressed
any of the problems that had caused J.M. to be removed from his home, nor did he even admit
that he had any problems.
{¶16} J.M.’s custodial history had included his entire lifetime living in temporary
placements. By the time of the permanent custody hearing, J.M. had spent nearly two years
living outside the custody of either parent and was in need of a legally secure permanent
placement. The parents had failed to remedy any of their parenting problems and were not able
to provide J.M. with a suitable home at that time or in the foreseeable future. Because CSB had 6
been unable to find a suitable relative for permanent placement, the trial court found that a
legally secure permanent placement would only be achieved by placing J.M. in the permanent
custody of CSB.
{¶17} Father has failed to demonstrate that the trial court’s permanent custody judgment
was against the manifest weight of the evidence. Consequently, his assignment of error is
overruled.
III.
{¶18} Father’s assignment of error is overruled. The judgment of the Summit County
Court of Common Pleas, Juvenile Division, is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 7
Costs taxed to Appellant.
JULIE A. SCHAFER FOR THE COURT
HENSAL, P. J. CALLAHAN, J. CONCUR.
APPEARANCES:
ANTHONY J. COSTELLO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.
LINDA BENNETT, Guardian ad Litem.