[Cite as In re Ke.R., 2017-Ohio-7533.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
In re Ke.R., K.P., Ki.R. Court of Appeals Nos. L-17-1092 L-17-1093
Trial Court Nos. JC 16255659 JC 16254000
DECISION AND JUDGMENT
Decided: September 7, 2017
*****
Adam H. Houser, for appellant.
Bradley W. King, for appellee.
***** SINGER, J.
{¶ 1} This is a consolidated case in which appellant, E.R., appeals the March 22,
2017 judgment of the Lucas County Court of Common Pleas, Juvenile Division, where
the court granted permanent custody of her three children to appellee, Lucas County
Children Services (“LCCS”). Finding no error in the judgment, we affirm. Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. The Guardian Ad Litem did not perform her duty under the Rules of
Superintendence and her testimony should not have been allowed and should have
been stricken.
2. The Finding that the Child (sic) Could not be Placed with Appellant
Within a Reasonable Time was Against the Manifest Weight of Evidence.
Facts
{¶ 3} This consolidated appeal is from case Nos. JC 16255659 and JC 16254000,
of the Lucas County Court of Common Pleas, Juvenile Division.
{¶ 4} Case No. JC 16254000 commenced in March 2016, when appellee, LCCS,
sought protective services for appellant’s children, K.P. and Ki.R. The complaint was
filed based on an LCCS caseworker, Katie Bertsch, alleging the children were neglected
and abused. The day after the filing, the magistrate granted interim temporary custody of
the children to LCCS.
{¶ 5} Bertsch knew of a family history of abuse and neglect because she had
investigated concerns regarding K.P. as far back as September 2014. In September 2014,
the father of K.P. (“father”) had physically abused both appellant and K.P., who was born
in August 2013. Resulting from the 2014 abuse, K.P. was adjudicated dependent,
neglected and abused, and a no-contact order was put in place to protect appellant and
K.P. from father. Ki.R. was born in February 2015.
2. {¶ 6} In July 2015, protective services were terminated for K.P., however, the
court ordered that the no-contact order remain in effect. In September 2015, appellant
and father participated in mediation at the Lucas County Child Support Enforcement
Agency (“LCCSEA”), and appellant did not inform the agency about the no-contact
order. Because it lacked knowledge of the order, LCCSEA proceeded to develop a
shared parenting plan for appellant and father. Father was granted unsupervised time,
and reports indicate appellant later stated she felt it was not her responsibility to inform
the authorities of the no-contact order that remained in effect.
{¶ 7} In March 2016, LCCS received a referral to investigate the family again
after father choked Ki.R. unconscious. This is when Bertsch began her investigation in
case No. JC 16254000. Appellant had called police to her home. When they arrived,
Ki.R. and father were outside. The child was reported to appear lifeless. Ki.R. was taken
to the hospital. No adults were with him during his admission to the Pediatric Intensive
Care Unit. While in jail for the assault, father admitted to trying to kill Ki.R. by choking
him, and also admitted to trying to kill K.P. in the past.
{¶ 8} Eventually LCCS learned and reported that appellant had allowed father into
her home on the occasion he attempted to choke and kill Ki.R. Appellant had done so,
despite the fact that the day before father had choked appellant unconscious and dangled
K.P. over a bannister.
{¶ 9} Father was arrested and sentenced to 30 months incarceration for the
choking incident, and appellant was offered case plan services, including substance
3. abuse, mental health, parenting, and housing services. She also underwent a psychiatric
evaluation which she completed and was diagnosed with “Adjustment Disorder with
Depressed Mood.” Nevertheless, appellant did not pursue mental health services. The
magistrate granted temporary custody of K.P. and Ki.R. to LCCS in April 2016.
{¶ 10} Case No. JC 16255659 was filed in May 2016, after Ke.R. was born and
LCCS sought protection for the child, within three days from her birth. The magistrate
granted interim temporary custody and, then, granted temporary custody of the child in
August 2016. The two cases involving the children were then consolidated.
{¶ 11} LCCS caseworker, Christina DeSilvis, investigated appellant’s completion
of services and living conditions. DeSilvis testified that she recommended appellant
maintain contact with her domestic violence group and voluntarily pursue parenting
programs. Appellant was reported to deny the need to maintain contact with the domestic
violence group. Appellant was also reported to have expressed an interest in the
parenting programs, but the record indicates she never enrolled.
{¶ 12} DeSilvis testified that appellant lived with her father, but that appellant
always met her on the porch, which did not allow a thorough investigation of the
premises. To DeSilvis this refusal was most alarming when she offered to do a safety
check to assess whether the home environment was child-safe, but was denied access by
appellant. In August 2016, LCCS decided it would pursue permanent custody of the
children.
4. {¶ 13} Steven T. Casiere was appointed as guardian ad litem (“GAL1”) for the
children. GAL1 filed a report in which he recommended LCCS be given temporary
custody of the children. The recommendation was based on GAL1’s review of the
“LCCS Complaint, LCCS file, criminal records, the juvenile court file regarding the prior
cases and pediatric records.” GAL1 also spoke with DeSilvis, appellant, the children’s
foster caregivers, and “staff at Family Care Center,” during his investigation. GAL1 had
observed the children at their placement, on two occasions, and observed the children
with mother during a visitation at LCCS.
{¶ 14} In September 2016, GAL1 withdrew from the case, and the court then
appointed Allma-Tadema Miller (“GAL2”). GAL2’s investigation consisted of
contacting appellant, the foster caregivers, DeSilvis, appellant’s maternal grandmother,
and the children. GAL2 did not contact father, but her report did evidence review of his
case file and conviction.
{¶ 15} GAL2 reported that she had difficulties meeting with appellant. For
instance, GAL2 testified that after three attempts to arrange a meeting, to observe
appellant with the children during visitation, appellant did not show. GAL2 also reported
reviewing prior filings related to the children, GAL1’s report, LCCS’s case file, criminal
records for appellant and father, “Centralized Drug Testing records” for appellant and
father, and medical records for K.P. and Ki.R, in her investigation. As of February 2017,
GAL2 recommended that permanent custody to LCCS would be in the best interest of the
5. {¶ 16} LCCS moved for permanent custody of the children. A hearing to address
the motion was scheduled for March 2017. At the hearing, the court heard testimony
from Bertsch, DeSilvis, and Miller. No other witnesses testified and, although duly
served and notified, appellant did not appear at the hearing. During the hearing the court
admitted into evidence, without objection, certified judgment or docket entries regarding
the family’s past and current juvenile neglect cases, father’s conviction for attempted
felonious assault on Ki.R., father’s conviction for domestic violence against appellant,
and appellant’s charges for drug abuse. GAL2’s report was also admitted into evidence
without objection.
{¶ 17} The court journalized the judgment on March 22, 2017. In the entry, the
court held that permanent custody of K.P., Ki.R., and Ke.R. was awarded to LCCS for
adoptive placement and planning, and that all of appellant’s parental rights in and to the
children were terminated, except her right to appeal. Appellant timely appealed.
First Assignment of Error
{¶ 18} Appellant first asserts the trial court erred in admitting GAL2’s testimony
and report because GAL2 failed to satisfy minimum standards set forth in Sup.R. 48(D).
Appellee contends GAL2 satisfied the reasonable effort requirements under Sup.R.
48(D).
{¶ 19} The purpose of a guardian ad litem in a permanent-custody proceeding is
“to protect the interest of the child and ‘assist a court in its determination of a child’s best
interest.’” In re C.B., 129 Ohio St.3d 231, 2011-Ohio-2899, 951 N.E.2d 398, ¶ 14, citing
6. R.C. 2151.281(B) and Sup.R. 48(B)(1). The guardian ad litem’s role is to “perform
whatever functions are necessary to protect the best interest of the child[.]” See R.C.
2151.281(I).
{¶ 20} Sup.R. 48 was adopted “to govern guardian ad litem standards in Ohio and
* * * is the first rule that sets statewide standards regarding the appointment,
responsibilities, training and reporting requirements of a guardian ad litem.” In re K.G.,
9th Dist. Lorain No. 10CA0016, 2010-Ohio-4399, ¶ 10.
{¶ 21} Sup.R. 48(D)(13) specifically states:
A guardian ad litem shall make reasonable efforts to become
informed about the facts of the case and to contact all parties. In order to
provide the court with relevant information and an informed
recommendation as to the child’s best interest, a guardian ad litem shall, at
a minimum, do the following, unless impracticable or inadvisable because
of the age of the child or the specific circumstances of a particular case:
(a) Meet with and interview the child and observe the child with
each parent, foster parent, guardian or physical custodian and conduct at
least one interview with the child where none of these individuals is
present;
(b) Visit the child at his or her residence in accordance with any
standards established by the court in which the guardian ad litem is
appointed;
7. (c) Ascertain the wishes of the child;
(d) Meet with and interview the parties, foster parents and other
significant individuals who may have relevant knowledge regarding the
issues of the case;
(e) Review pleadings and other relevant court documents in the case
in which the guardian ad litem is appointed;
(f) Review criminal, civil, educational and administrative records
pertaining to the child and, if appropriate, to the child’s family or to other
parties in the case;
(g) Interview school personnel, medical and mental health providers,
child protective services workers and relevant court personnel and obtain
copies of relevant records;
(h) Recommend that the court order psychological evaluations,
mental health and/or substance abuse assessments, or other evaluations or
tests of the parties as the guardian ad litem deems necessary or helpful to
the court; and
(i) Perform any other investigation necessary to make an informed
recommendation regarding the best interest of the child.
See, e.g., In re C.G., 6th Dist. Lucas Nos. L-15-1256, L-15-1257, 2016-Ohio-375, ¶ 51.
{¶ 22} As an instructive case we point to In re E.S., in which we found no error in
admitting a guardian ad litem’s testimony and report despite acknowledging that the
8. guardian’s investigation could have been more expansive. See In re E.S., 6th Dist.
Ottawa Nos. OT-14-008, OT-14-009, OT-14-011, OT-14-012, 2014-Ohio-3067, ¶ 64. In
In re E.S., we recognized that Sup.R. 48(D)(13) does not have the “force of law,” since it
is only intended to be a general guideline “for the conduct of the courts and do[es] not
create substantive rights in individuals or procedural law.”
{¶ 23} Based on this recognition and two dispositive considerations, it was
appropriate for the guardian’s testimony and report to be admitted and considered.
{¶ 24} First, we noted the extent of the guardian’s investigation and how “there
were tasks described in Sup.R. 48(D)(13) that were performed.” Id. at ¶ 65. In that
regard, the record reflected that the guardian interviewed the parents, communicated with
the children’s service agencies at issue, reviewed the case plan, reviewed discovery,
reviewed the court record, and considered the children’s interest to the extent possible in
consideration of the fact that they were too young to offer meaningful input. Id.
{¶ 25} Second, we stated how the guardian’s testimony “was brief and was
certainly not the exclusive factor driving the court’s decision.” Id. at ¶ 66. The record
reflected the guardian was only one of many witnesses and that the court did not place
much emphasis on the guardian’s testimony or recommendation. Further, we found the
guardian was subject to a challenging cross-examination and there was evidence on
record to allow the trial court to “believe or disbelieve [the] testimony, to assign it
whatever weight it deemed appropriate, and to consider it in the context of all the other
evidence[.]” Id.
9. {¶ 26} Consistent with In re E.S., we found minimum standards of Sup.R.
48(D)(13) met in another demonstrative case, In re C.G., 6th Dist. Lucas Nos. L-15-1256,
L-15-1257, 2016-Ohio-375. In that case, we held as such despite the argument that a
successor guardian ad litem had insufficient time to conduct an independent investigation
to properly determine the best interest of the child. Id. at ¶ 49.
{¶ 27} In In re C.G., a second guardian was appointed during the proceedings,
who did not specifically interview the father or child in reaching a recommendation or
drafting a report. Nevertheless, based on the guardian’s testimony, the record reflected
that the child was only an infant who was unable to express wishes, and that the guardian
made several attempts to contact and arrange a meeting with the father, to no avail. Id. at
¶ 52. The guardian’s report and recommendation were stated to be based on “background
of the case from the court records, filings, the caseworker, and the foster mother.” Based
on this limited investigation, the guardian nevertheless found reasonable grounds to
conclude that the father never visited the child, that neither parent participated in
services, and that the children’s services agency had adopted an older sibling of the child
and was in position to adopt the child at issue. We, therefore, found the investigation was
sufficient to satisfy the reasonable effort requirements.
{¶ 28} Here, based on review of the record, consistent with In re E.S. and In re
C.G., we find that GAL2 satisfied the requirements set forth in Sup.R. 48(D)(13) before
offering a report and testifying.
10. {¶ 29} In discussing GAL2’s testimony, the March 22, 2017 trial court judgment
entry in pertinent part states:
At the close of all evidence, the Court heard testimony from Allma-
Tadema Miller, [GAL2] for the children. Ms. Miller testified that she had
been involved with the case since September of 2016. She testified she
conducted a separate investigation into the case and had interviewed
[appellant], family members, and LCCS personnel. She testified she also
reviewed documents concerning this case. Ms. Miller had difficulty
meeting with [appellant] and had attempted to do so at the visits set up for
[appellant] and the children. [Appellant] did not attend these visits, but the
two were able to meet three weeks before this trial after Ms. Miller
contacted [appellant]’s step-mother.
Ms. Miller testified that [appellant] was reluctant to acknowledge the
history of domestic violence between her and [father]. [Appellant] also
minimized concerns for violent behavior by blaming it on [father]’s
substance abuse.
At the conclusion of her testimony, Ms. Miller testified that she
believed an award of permanent custody was in the best interest of the
children. She testified that her recommendation was based on a totality of
the circumstances, and she has serious concerns for the safety of the
children in their parents’ care.
11. {¶ 30} The judgment entry eventually follows with, “[t]he Court finds that, after
performing a separate and independent investigation, the guardian ad litem recommends
that permanent custody is in the best interest of the children.”
{¶ 31} Based on our review of the transcript of the March 2017 hearing, GAL2
confirmed that she had limited contact with appellant, and that appellant missed three
visitation appointments on the days GAL2 was there to observe. These were scheduled
for Saturdays, after appellant had requested that Saturday be her visitation day. Further,
GAL2 testified how she visited the children at their placement residence with the foster
caregivers, and that the children were thriving in the healthy environment. GAL2
discussed her suspicions that appellant could not keep the children safe, based on
enabling father’s past neglect and “significant” abuse, appellant’s ongoing drug use and
pattern of domestic violence, and appellant’s lack of initiative in taking responsibility for
her past actions or mental health problems.
{¶ 32} Lastly, GAL2’s written report indicates that GAL2 interviewed appellant,
her maternal grandmother, the children to the extent possible, LCCS, and the foster
caregivers. The report also indicates GAL2 reviewed “prior filings,” “prior GAL report,”
“LCCS Case file,” “Criminal records for Father and Mother,” “Centralized Drug Testing
records for Mother and Father,” and “Mercy Medical records for K.P. and Ki.R.” The
report discusses the disturbing case history of the children, the current safe and healthy
(foster care) placement of the children, the fact that the foster caregivers are interested in
adopting all three siblings, and the lack of parental progress displayed by appellant’s
12. inconsistent completion of case plan services and scheduled visitations. The report also
highlights how the children are all too young to express sincere wishes regarding their
placement.
{¶ 33} Therefore, based on review of the entire record, including the trial court
judgment, the transcript of the March 2017 hearing, and GAL2’s written report, we find
tasks described in Sup.R. 48(D)(13) were performed by GAL2, and that GAL2’s
testimony and report were not the exclusive factors driving and supporting the court’s
decision. See In re E.S., supra. Moreover, we find that despite GAL2 being appointed
with only seven months left in the case, her investigation provided reasonable grounds to
support her findings and the conclusion that LCCS should be granted permanent custody.
See In re C.G., supra.
{¶ 34} Consequently, we can neither say that GAL2 failed to satisfy the minimum
standards set forth in Sup.R. 48(D), nor that the trial court erred in admitting and giving
consideration to GAL2’s testimony and report.
{¶ 35} Accordingly, appellant’s first assigned error is not well-taken.
Second Assignment of Error
{¶ 36} Appellant next argues the award of permanent custody to LCCS was in
error by challenging the trial court’s finding that her children could not be placed with
her within a reasonable time. Appellee contends the grant of custody was supported by
clear and convincing evidence.
13. {¶ 37} A trial court can award permanent custody to a public children’s services
agency upon finding that the child “cannot be placed with either of the child’s parents
within a reasonable time or should not be placed with either parent,” so long as the court
also determines that the award of permanent custody is in the child’s best interests. See
R.C. 2151.414(B)(2).
{¶ 38} Under R.C. 2151.414(E), a finding, by clear and convincing evidence, that
one of the conditions listed in R.C. 2151.414(E)(1)-(16) exists is necessary to establish
that the child cannot be placed with either parent within a reasonable time or should not
be placed with either parent. In re William S., 75 Ohio St.3d 95, 661 N.E.2d 738 (1996),
syllabus. In turn, R.C. 2151.414 (D) lists relevant factors to be considered by the court in
determining whether an award of permanent custody to a public children’s services
agency is in the best interest of the child.
{¶ 39} Clear and convincing evidence is evidence that will “produce in the mind
of the trier of fact a firm belief or conviction as to the facts sought to be established.” In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985), quoting Cross
v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
A. Placed Within a Reasonable Time
{¶ 40} “[T]he existence of only one of the factors under R.C. 2151.414(E) is
sufficient to determine that a child cannot be placed with a parent within a reasonable
time.” In re S.P., 6th Dist. Lucas No. L-14-1113, 2014-Ohio-5075, ¶ 32, quoting In re
R.L., 9th Dist. Summit Nos. 27214, 27233, 2014-Ohio-3117, ¶ 24.
14. {¶ 41} In this case, we will only address the four factors under R.C. 2151.414(E)
which were explicitly relied on in the trial court judgment against appellant.
1. R.C. 2151.414(E)(1) provides:
Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the agency
to assist the parents to remedy the problems that initially caused the child to
be placed outside the home, the parent has failed continuously and
repeatedly to substantially remedy the conditions causing the child to be
placed outside the child’s home. In determining whether the parents have
substantially remedied those conditions, the court shall consider parental
utilization of medical, psychiatric, psychological, and other social and
rehabilitative services and material resources that were made available to
the parents for the purpose of changing parental conduct to allow them to
resume and maintain parental duties.
{¶ 42} Here, the judgment entry states that appellant “has failed continuously and
repeatedly to substantially remedy the conditions causing the children to be placed
outside the home.” This was found by the court to be apparent “notwithstanding
reasonable case planning and diligent efforts by the agency to assist the parent to remedy
the problems that initially caused the children to be placed outside the home[.]”
{¶ 43} Based on our review of the testimony on record, we find there is clear and
convincing evidence to support this finding. Specifically, testimony and other evidence
15. reveal K.P. was subject to his father attempting to kill or severely injure him as far back
as September 2014. Although a no-contact order was put in place then, appellant still
allowed the father to see the child, even though father posed an obvious threat to the
child’s well-being. Appellant even failed to report the no-contact order to LCCSEA,
because she was not aware it was her responsibility to report the order and protect her
{¶ 44} Further, appellant enabled father to physically harm Ki.R. because, when
father did so by choking the child in an effort to kill him, appellant was fully aware of
father’s propensity to commit physical violence against her and the children, yet she left
father alone with Ki.R. The record actually reveals that the day before choking Ki.R.,
father dangled K.P. over a bannister and choked appellant until she collapsed, and that
father had admitted to attempting to kill K.P. numerous times prior to that occasion. We
find adequate support for the trial court’s finding that appellant failed to protect her
children and lacked awareness, and these initially caused the children to be placed outside
her home.
{¶ 45} We likewise find support for the court’s finding that appellant has not
changed her parental conduct to allow her to resume and maintain parental duties. For
instance, despite appellant participating in recommended case plan services, the record
reflects she was inconsistent with the services because she did not fully or voluntarily
participate in parenting and/or drug therapy. She actually failed drug tests and was
charged and arrested for possession during the time period of the proceedings, in spite of
16. her claiming and recognizing that the children’s father was a threat due to his drug use.
There is also evidence she did not maintain stable employment or independent living
arrangements and, thus, we find appellant has not substantially remedied the conditions
that led to the removal of K.P., Ki.R., and Ke.R.
{¶ 46} Consequently, we find ample evidence to support the trial court’s findings
under R.C. 2151.414(E)(1).
2. R.C. 2151.414(E)(4) provides: “The parent has demonstrated a lack of commitment
toward the child by failing to regularly support, visit, or communicate with the child
when able to do so, or by other actions showing an unwillingness to provide an adequate
permanent home for the child[.]”
{¶ 47} Here, the trial court judgment entry states that appellant “has demonstrated
a lack of commitment toward the children by failing to regularly visit with them when
able to do so.” The record supports this finding because an LCCS caseworker testified
that up until September 2016, appellant was consistent with her visits. However,
according to testimony of LCCS and GAL2, starting October 2016, appellant became
inconsistent with the visits. GAL2 actually testified that she and appellant arranged three
visits in which appellant had an opportunity to show interaction with the children during
visitation, but that appellant failed to attend all three. LCCS also noted that appellant had
not shown that she had an adequate permanent home for the children and, although
appellant lived with her father, during their investigation appellant did not allow LCCS
into her father’s residence to view the conditions and appropriateness of the home.
17. {¶ 48} In terms of more recent behavior, an LCCS caseworker explained how
appellant was placed “on an hour show,” which required appellant to “arrive and check in
for her visit an hour prior to visitation start time.” This was done to ensure appellant was
going to attend before the foster caregivers went out of their way to bring the children to
visitation. Appellant was not present at the March 2017 hearing to explain her absences
and, thus, we cannot say she was unable with justification to visit on the occasions she
missed.
{¶ 49} Accordingly, we find clear and convincing evidence supporting the trial
court’s finding under R.C. 2151.414(E)(4).
3. R.C. 2151.414(E)(14) provides: “The parent for any reason is unwilling to provide
food, clothing, shelter, and other basic necessities for the child or to prevent the child
from suffering physical, emotional, or sexual abuse or physical, emotional, or mental
neglect.”
{¶ 50} Here, the judgment entry states that appellant “is unwilling to prevent the
children from suffering physical or emotional abuse.” As articulated above in addressing
R.C. 2151.414(E)(1), we find ample evidence appellant failed to protect her children and
lacked awareness as regards their physical, mental and emotional well-being.
{¶ 51} Accordingly, the trial court’s finding under R.C. 2151.414(E)(14) is
supported by the record.
18. 4. R.C. 2151.414(E)(16) provides: “Any other factor the court considers relevant.”
{¶ 52} Here, the judgment entry states that appellant “failed to participate in the
permanent custody trial despite having previously attended court appearances and being
duly served and notified.
{¶ 53} At the March 2017 hearing the court engaged in discussion with appellant’s
counsel regarding appellant’s absence:
THE COURT: Thank you. All right. Ms. Stoner, let’s start with
your client.
COUNSEL: Your Honor, I do not know where my client is this
morning. She has been present at other court hearings. Most recently the
February pretrial date. So I have no explanation for her nonappearance.
THE COURT: She is aware of today’s date?
COUNSEL: Yes, she is, Your Honor. And since she was at court
recently and I’m aware of her wishes—
THE COURT: You can proceed?
COUNSEL: I can proceed.
THE COURT: Okay. Maybe she’s just late. I would say for the
record that it is 9:33 and this case was scheduled to begin at 9 o’clock. So
all right. * * *
{¶ 54} Based on appellant’s counsel statement that appellant knew of the
important hearing yet failed to attend, we find there is support for the trial court’s finding.
19. Such a failure to appear reflects poorly on appellant’s desire to regain custody, to display
responsibility and, further, is evidence she lacked care in supporting her legal position.
{¶ 55} Consequently, we find clear and convincing evidence supports the finding
under R.C. 2151.414(E)(16), and weighing the above-mentioned factors under R.C.
2151.414(E) provides sufficient grounds for us to determine that K.P., Ki.R., and Ke.R.
cannot be placed with appellant within a reasonable time.
B. The Children’s Best Interest
{¶ 56} When determining whether a grant of permanent custody is in a child’s best
interest, the trial court “must consider all the relevant factors, including those enumerated
in R.C. 2151.414(D): the interaction and interrelationships of the child, the wishes of the
child, the custodial history of the child, the child’s need for permanence in his life, and
any applicability of the factors in R.C. 2151.414(E)(7) to (11).” In re E.M., 9th Dist.
Wayne No. 15CA0033, 2015-Ohio-5316, ¶ 13.
{¶ 57} In this case, we will individually address the three factors under R.C.
2151.414(D) which were relied on in the trial court judgment against appellant. We note
that although the trial court stated the factors separately, it only provided the following
paragraph addressing the three factors collectively.
The children are placed together and are thriving. The children are
getting any and all services they require. They have not been able to visit
consistently with their parents due to [father]’s incarceration and
[appellant]’s failure to attend her visits regularly. The children are in need
20. of a legally secure and permanent placement and such a placement cannot
occur without an award of custody to LCCS.
1. R.C. 2151.414(D)(1)(a) provides: “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[.]”
{¶ 58} Here, and as articulated above, we find ample support for the trial court’s
concern that the interaction and interrelationship of the children with their parents
jeopardizes the children’s safety and well-being. The record reflects that the foster
caregivers are much better suited to provide a child-safe and permanent home, to provide
adequate care, to meet the needs of the children, and to nurture and foster a healthy
environment and upbringing for all three children. The caregivers want to adopt all three
children, allowing the children to be raised together as a family unit.
{¶ 59} Consequently, we find clear and convincing evidence which supports the
trial court’s finding under R.C. 2151.414(D)(1)(a).
2. R.C. 2151.414(D)(1)(c) provides:
The custodial history of the child, including whether the child has
been in the temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or the child has been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a consecutive
21. twenty-two-month period and, as described in division (D)(1) of section
2151.413 of the Revised Code, the child was previously in the temporary
custody of an equivalent agency in another state[.]
{¶ 60} Here, LCCS filed its complaint in dependency, neglect, and abuse for K.P.
and Ki.R. on March 8, 2016. The next day the magistrate granted interim temporary
custody of the children to LCCS. On May 17, 2016, Ke.R. was born and LCCS sought
protective services for her three days later. The magistrate granted interim temporary
custody of Ke.R. to LCCS on May 25, 2016.
{¶ 61} The children have been in custody for purposes of R.C. 2151.414(D)(1)(c)
since LCCS was granted interim temporary custody. As reflected in the transcript of the
March 2017 hearing the court, in addressing this factor, stated: “(D)(1)(c) I believe these
children have been in the care of the Agency for 12 months now out of the last 22 months
and so I am going to indicate that (D)(1)(c) applies.” This finding was in error because
although the court was close in its estimation, none of the children were in LCCS’s
custody for 12 months at that point in time.
{¶ 62} Thus as of the date of the March 2017 hearing, we cannot say that the
custodial history of the children satisfied the requirements of R.C. 2151.414(D)(1)(c).
3. R.C. 2151.414(D)(1)(d) provides: “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[.]”
22. {¶ 63} Here, the children’s need for a legally secure permanent placement would
be satisfied with permanent custody to LCCS because the current foster caregivers intend
on adopting all three children into their healthy, child-safe home environment. There is
no doubt these young children are in need of stable placement, and we find no evidence
in the record to reveal that the children would otherwise have such healthy, safe
permanency without LCCS intervention, as appellant has not provided sufficient
evidence to the contrary. Appellant’s second assigned error is found not well-taken.
{¶ 64} Accordingly, there is clear and convincing evidence that legally secured
placement of the children cannot be achieved without a grant of permanent custody to
LCCS and, in also considering R.C. 2151.414(D)(1)(a) as analyzed above, we cannot say
it was error to award permanent custody to LCCS in the children’s best interest.
Conclusion
{¶ 65} The judgment of the Lucas County Court of Common Pleas, Juvenile
Division, is affirmed. Appellant is ordered to pay costs of this appeal pursuant to App.R.
24.
Judgment affirmed.
23. In re Ke.R. C.A. Nos. L-17-1092 L-17-1093
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE