In re J.M.

2023 Ohio 1409

Opinion

[Cite as In re J.M., 2023-Ohio-1409.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. William B. Hoffman, P.J. J.M., JR. AND : Hon. John W. Wise, J. : Hon. Andrew J. King, J. J.M. : : MINOR CHILDREN : Case Nos. 2023 CA 00008 : 2023 CA 00009 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Family Court Division, Case Nos. 2021 JCV 986 & 2021 JCV 987

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 27, 2023

APPEARANCES:

For Appellant Mother For Appellee SCDJFS

KATHALEEN S. O'BRIEN BRANDON J. WALTENBAUGH 116 Cleveland Avenue, NW 402 2nd Street, SE Suite 303 Canton, OH 44702 Canton, OH 44702 Guardian ad Litem D. COLEMAN BOND 116 Cleveland Avenue, NW BERNARD HUNT Suite 600 2395 McGinty Road Canton, OH 44702 North Canton, OH 44720 Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 2

King, J.

{¶ 1} Appellant mother, Co.K., appeals the January 4, 2023 judgment entries of

the Court of Common Pleas of Stark County, Ohio, Family Court Division, terminating her

parental rights and granting permanent custody of her children to appellee, Stark County

Department of Job and Family Services ("SCDJF"). We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On October 1, 2021, SCDJF filed complaints alleging two children, Ja.M.,

Jr. born January 2020 and Jo.M. born June 2021, to be dependent and/or neglected.

Mother of the children is appellant herein; established father of Ja.M., Jr. is Ja.M.; legal

father of Jo.M. is Ch.K., but paternity was not established. Initial concerns included

mother's homelessness, her drug use, threats to commit suicide, and exposing her

children to domestic violence. An emergency shelter care hearing was held on October

1, 2021, and the children were placed in the temporary custody of SCDJF.

{¶ 3} On October 27, 2021, initial case plans were filed with the goal being

reunification.

{¶ 4} On December 21, 2021, mother stipulated to dependency. By decisions

filed December 22, 2021, the trial court found the children to be dependent and continued

the children's temporary custody with SCDJF. The trial court approved and adopted the

case plans.

{¶ 5} On August 19, 2022, SCDJF filed motions for permanent custody of the

children. On August 25, 2022, mother filed motions to extend temporary custody for six

months. The hearing on the permanent custody motions was set for October 19, 2022.

On October 18, 2022, mother requested a continuance which was granted until December Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 3

20, 2022. On that date, a hearing was held before the trial court. By judgment entries

filed January 4, 2023, the trial court terminated all parental rights and granted permanent

custody of the children to SCDJF. Findings of fact and conclusions of law were filed

contemporaneously with the judgment entries.

{¶ 6} Mother filed appeals and assigned the following errors in each case:

I

{¶ 7} "THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO

STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS

SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT

GROUNDS EXISTED FOR PERMANENT CUSTODY OF MINOR CHILD AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

II

{¶ 8} "THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO

THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS

SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IT IS IN

THE BEST INTERESTS OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY

AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

I, II

{¶ 9} In her two assignments of error, mother claims the trial court's decisions in

finding grounds existed for permanent custody and the best interests of the children would

be best served by granting permanent custody of the children to SCDJF were against the

manifest weight of the evidence. We disagree. Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 4

{¶ 10} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

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

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983). In State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the

Supreme Court of Ohio explained the following:

Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics, but depends on its effect in inducing

belief." (Emphasis sic.)

{¶ 11} In weighing the evidence however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517. Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 5

{¶ 12} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial

court determines, by clear and convincing evidence, that it is in the best interest of the

child and:

(a) The child is not abandoned or orphaned * * * and the child cannot

be placed with either of the child's parents within a reasonable time or

should not be placed with the child's parents.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who

are able to take permanent custody.

(d) The child has been in the temporary custody of one or more public

children services agencies or private child placing agencies for twelve or

more months of a consecutive twenty-two-month period * * *.

(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.

{¶ 13} Clear and convincing evidence is that evidence "which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985).

"Where the degree of proof required to sustain an issue must be clear and convincing, a Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 6

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." Cross at 477.

{¶ 14} R.C. 2151.414(E) sets out the factors relevant to determining whether a

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

be placed with the parents. Said section states in pertinent part the following:

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and

convincing evidence, at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code that one or more of the following exist as to each of the child's

parents, the court shall enter a finding that the child cannot be placed with

either parent within a reasonable time or should not be placed with either

parent:

(1) Following the placement of the child outside the child's home and

notwithstanding reasonable case planning and diligent efforts by the agency

to assist the parents to remedy the problems that initially caused the child

to be placed outside the home, the parent has failed continuously and

repeatedly to substantially remedy the conditions causing the child to be

placed outside the child's home. In determining whether the parents have Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 7

substantially remedied those conditions, the court shall consider parental

utilization of medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made available to

the parents for the purpose of changing parental conduct to allow them to

resume and maintain parental duties.

(16) Any other factor the court considers relevant.

{¶ 15} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child:

(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division (A)(4)

or (5) of section 2151.353 or division (C) of section 2151.415 of the Revised

Code, 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, including whether the child has

been in the temporary custody of one or more public children services Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 8

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two-month period * * *;

(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.

{¶ 16} During the hearing, the trial court heard from the ongoing family caseworker,

mother's parenting evaluator, mother's substance abuse counselor, mother's mental

health counselor, the guardian ad litem, and mother. As explained by our brethren from

the Second District in In re A.J.S. & R.S., 2d Dist. Miami No. 2007CA2, 2007-Ohio-3433,

¶ 22:

Accordingly, issues relating to the credibility of witnesses and the

weight to be given the evidence are primarily for the trier of fact. In this

regard, "[t]he underlying rationale of giving deference to the findings of the

trial court rests with the knowledge that the trial judge is best able to view

the witnesses and observe their demeanor, gestures and voice inflections,

and use these observations in weighing the credibility of the proffered

testimony." Seasons Coal Co., Inc. v. Cleveland (1984), 10 Ohio St.3d 77,

80, 461 N.E.2d 1273. Finally, an appellate court must adhere to every

reasonable presumption in favor of the trial court's judgment and findings of Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 9

fact. In re Brodbeck, 97 Ohio App.3d 652, 659, 647 N.E.2d 240, citing

Gerijo, Inc. v. Fairfield (1994), 70 Ohio St.3d 223, 226, 1994-Ohio-432, 638

N.E.2d 533.

{¶ 17} Further, " 'the discretion which the juvenile court enjoys in determining

whether an order of permanent custody is in the best interest of a child should be

accorded the utmost respect, given the nature of the proceeding and the impact the

court's determination will have on the lives of the parties concerned.' " In re Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1700073, *2 (Nov. 13, 2000),

quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist.1994).

{¶ 18} The caseworker testified mother was to complete a parenting evaluation

and follow all resulting recommendations, complete a substance abuse assessment and

follow all resulting recommendations, complete drug screening, engage in mental health

treatment, obtain appropriate and independent housing, and successfully complete

parenting classes at Goodwill Parenting. T. at 7. Mother completed the parenting

evaluation and the substance abuse assessment, and engaged in substance abuse and

mental health treatment. Id. The caseworker explained mother was often homeless, but

did obtain appropriate housing in May/June 2022. T. at 13. Mother's participation in

mental health treatment was not consistent and she had several no shows. T. at 14. She

was not in compliance with her treatment plan for substance abuse, did not make

significant progress in treatment, and had missed over sixty drug screens. T. at 14-15.

Mother's last drug screen in November 2022 was positive for methamphetamines,

amphetamines, and marijuana. T. at 15. The caseworker testified mother regularly tested Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 10

positive for those substances. Id. While mother owned up to the fact that she struggled

with substance abuse, there really was no progress after about a year into the case. T.

at 15-16. Mother could not initiate parenting classes because she failed to achieve three

to four months of sobriety before she could be accepted into the program. T. at 16.

Mother was consistent with visitation and the caseworker did not have any concerns with

the visitation with mother. T. at 26.

{¶ 19} The parenting evaluator testified mother's evaluation raised several

concerns regarding her parenting ability.1 T. at 43-44. The evaluator was concerned with

mother's mental health which was not well managed, her significant ongoing substance

abuse and her elevated stress levels, and the children's exposure to domestically violent

relationships. T. at 44. The evaluator testified her diagnostic impressions of mother

included adjustment disorder with depressed mood, major depressive disorder, recurrent

severe without psychotic features, unspecified trauma and stressor-related disorder,

severe cannabis use disorder, alcohol use disorder, amphetamine use disorder, and

features of dependent personality disorder. T. at 44-45. The evaluator testified with

mother's below average intellectual abilities, specifically her verbal abilities, she would

have difficulties understanding and retaining parenting instruction. T. at 45-46. The

evaluator recommended that mother continue to participate in weekly intensive individual

counseling, continue to submit random drug screens, and participate in intensive

outpatient substance abuse counseling. T. at 46. After a four-month period of sobriety,

mother needed to successfully complete parenting classes, although the classes would

1Theparenting evaluator has master's degrees in clinical psychology and health and crisis communication, but is not licensed. T. at 40. She works under the licensure of a licensed psychologist. Id. Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 11

have to be highly structured to check and recheck "to ensure her comprehension and

transfer of learning." Id. Mother attended three of five scheduled appointments. T. at

53.

{¶ 20} The substance abuse counselor testified mother was sporadic in her

attendance, but was making progress because "she would always return" which indicated

a desire to change. T. at 58-59. It was common for individuals with substance abuse

issues to relapse. T. at 59. In the month of October 2022, mother drug tested twelve

times and was positive for drugs five times. T. at 62.

{¶ 21} The mental health counselor testified mother was inconsistent with her

treatment and missed nine out of sixteen appointments. T. at 67.

{¶ 22} Appellant testified she first thought she could go to intensive outpatient

services "and just fool people, and just play it all," but now acknowledges she has a

problem and is taking the concerns more seriously. T. at 73, 76, 78. On the day of the

hearing, she was planning to start inpatient drug treatment for thirty days or however long

it took. T. at 77. Mother loves her children, but needed time to accept she had a problem.

T. at 79. She missed appointments due to medical and transportation issues. T. at 82-

84.

{¶ 23} In its January 4, 2023 judgment entries, the trial court found notwithstanding

reasonable case planning and SCDJF's diligent efforts, mother "has failed to remedy the

conditions that caused the child[ren] to be placed." The children could not "be placed

with either parent at this time or within a reasonable period of time" and "should not be

placed with either parent." The trial court made extensive findings of fact relative to the

factors under R.C. 2151.414. January 4, 2023 Findings of Fact and Conclusions of Law Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 12

at 8-15.2 The trial court noted mother's participation in mental health services "has been

inconsistent" and she "has not been consistent enough to make meaningful progress."

Id. at 9. Mother has "engaged in minimal participation" in substance abuse treatment and

has "not maintained sobriety for even a month." Id. at 10. The trial court found "14 months

into the case and no progress has been made by Mother on her sobriety." Id. The trial

court determined "there has not been substantial progress made by the parents to justify

an extension." Id. at 11. During the four-month continuance from October to December,

mother "did not substantially comply with her case plans" and "did not reduce the risk that

caused the removal despite reasonable and diligent efforts by the Agency." Id. The trial

court denied mother's motion to extend temporary custody, finding she "has not shown

substantial progress with her case plan goals and sobriety," "has had no period of sobriety

in 14 months," and "has not shown that with an extension of 6 months, she will be able to

remedy the concerns" which resulted in the children's removal. Id. at 15.

{¶ 24} During the best interest phase of the hearing, the caseworker testified the

children were placed together in foster care, they appeared to be "well loved" in the foster

home, and were bonded to the foster parents and the other children in the home. T. at

91-92. The children and mother appeared bonded as well. T. at 93. The foster family

was interested in adopting the children. T. at 97. The caseworker agreed permanent

custody was in the children's best interests. T. at 96. The caseworker did not support an

extension because the longer the children did not have permanency, the harder it was for

them. T. at 97. Recently, the children "have seemed to become less open and eager to

2Quotations are taken from the Findings of Fact and Conclusions of Law filed in Case No. 2021 JCV 00987. While identical in each case, the pagination is slightly off in Case No. 2021 JCV 00986 as to some quotes. Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 13

be at the visitation" with mother. Id. The caseworker testified whenever the children

return to the foster home, "as soon as they see the foster home they start screaming in

excitement, to be back to their, what they consider their home." Id.

{¶ 25} The guardian ad litem stated the "children deserve some permanency" and

the parents "have been inconsistent in their case plan services." T. at 99. The guardian

agreed permanent custody to SCDJF was in the children's best interests. T. at 99-100.

The guardian opined the parents "have had enough time to show the court that they want

to go forward and do the case plan services that they need to do." T. at 100. In his report

under "Recommendations" the guardian noted, "[w]hile mother has recently begun

counseling, she has consistently tested positive for drugs throughout the pendency of this

case" and the "children deserve permanency." Guardian ad Litem Report filed December

9, 2022.

{¶ 26} As for best interests, the trial court made findings and determined "the harm

caused by severing any bond with the parents is outweighed by the benefits of

permanence" and the children deserve to be "in a stable, loving environment." January

4, 2023 Findings of Fact and Conclusions of Law at 16-19.

{¶ 27} Based upon the testimony presented, we do not find the trial court lost its

way in making the decisions to terminate mother's parental rights and grant permanent

custody of the children to SCDJF. We do not find any manifest miscarriage of justice.

{¶ 28} Assignments of Error I and II are denied. Stark County, Case Nos. 2023 CA 00008 & 2023 CA 00009 14

{¶ 29} The judgments of the Court of Common Pleas of Stark County, Ohio, Family

Court Division, are hereby affirmed.

By King, J.

Hoffman, P.J. and

Wise, J. concur.

AJK/db