In re K.Y.

2025 Ohio 1117

Opinion

[Cite as In re K.Y., 2025-Ohio-1117.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN RE K.Y. : JUDGES: : Hon. Craig R. Baldwin, P.J. : Hon. Andrew J. King, J. : Hon. David M. Gormley, J. : : : Case No. 2024 CA 00176 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Family Court Division, Case No. 2023JCV01401

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 28, 2025

APPEARANCES:

For Appellant Mother For Appellee Agency

RICHARD D. HIXSON BRANDON J. WALTENBAUGH 3808 James Court, Suite 2 402 2nd Street SE Zanesville, OH 43701 Canton, OH 44702

Guardian ad Litem for Mother Guardian ad Litem for K.Y.

COLE BOND DEAN GRASE 116 Cleveland Avenue NW 116 Cleveland Avenue NW, Suite 700 Canton, OH 44702 Canton, OH 44702 King, J.

{¶ 1} Appellant mother, E.Y., appeals the September 3, 2024 judgment entry of

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

parental rights and granting permanent custody of her child to appellee agency, Stark

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

FACTS AND PROCEDURAL HISTORY

{¶ 2} On December 6, 2023, SCDJFS filed a complaint alleging a child, K.Y. born

February 2023, to be dependent and/or neglected. Mother of the child is appellant herein;

father is S.S., incarcerated during the pendency of the case. A case plan was filed on

December 8, 2023.

{¶ 3} An adjudicatory hearing was held on January 31, 2024; mother appeared

and stipulated to dependency. By judgment entries filed February 1, 2024, the trial court

found the child to be dependent and placed the child in the temporary custody of SCDJFS.

The trial court approved and adopted the case plan.

{¶ 4} On July 9, 2024, SCDJFS filed a motion for permanent custody of the child.

On August 15, 2024, mother requested a six-month extension of temporary custody. A

hearing was held before the trial court on August 29, 2024. By judgment entry filed

September 3, 2024, the trial court terminated all parental rights and granted permanent

custody of the child to SCDJFS. Findings of fact and conclusions of law were filed

contemporaneously with the judgment entry.

{¶ 5} Mother filed an appeal and assigned the following errors: I

{¶ 6} "THE TRIAL COURT'S FINDING THAT K.Y. CANNOT BE PLACED WITH

EITHER PARENT AT THIS TIME OR WITHIN A REASONABLE PERIOD OF TIME WAS

UNSUPPORTED BY CLEAR AND CONVINCING EVIDENCE AND AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE."

II

{¶ 7} "THE TRIAL COURT'S FINDING THAT PERMANENT CUSTODY WAS IN

THE BEST INTERESTS OF THE CHILDREN WAS UNSUPPORTED BY CLEAR AND

CONVINCING EVIDENCE AND AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE."

III

{¶ 8} "THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO

INQUIRE WHETHER THE CHILD WAS A MEMBER OF OR ELIGIBLE FOR

MEMBERSHIP IN A FEDERALLY RECOGNIZED INDIAN TRIBE, PURSUANT TO THE

INDIAN CHILD WELFARE ACT OF 1978."

I, II

{¶ 9} In her first and second assignments of error, mother claims the trial court

erred in granting permanent custody of the child to SCDJFS, arguing the trial court's

findings that grounds existed for permanent custody and that permanent custody was in

the best interests of the child were not supported by clear and convincing evidence and

were against the manifest weight of the evidence. We disagree with both assignments of

error. {¶ 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 (1st Dist. 1983). In State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting

Black's Law Dictionary (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 in original.)

{¶ 11} In weighing the evidence, we are always mindful of the presumption in favor

of the trial court's factual findings. Eastley v. Volkman, 2012-Ohio-2179.

{¶ 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 (1954), paragraph three of the syllabus. See In re

Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "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." 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 either parent. 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 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.

(2) Chronic mental illness, chronic emotional illness, intellectual

disability, physical disability, or chemical dependency of the parent that is

so severe that it makes the parent unable to provide an adequate

permanent home for the child at the present time and, as anticipated, within

one year after the court holds the hearing pursuant to division (A) of this

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

Revised Code;

(4) 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;

(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

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

(Kimberly Gabel), mother's psychological evaluator (Aimee Thomas, Ph.D.),

representatives from the Goodwill Parenting Program (Jennifer Fire) and Help Me Grow

(Shawnette Britton), and mother and father. The guardian ad litem submitted reports. As explained by our brethren from the Second District in In re A.J.S. & R.S., 2007-Ohio-3433,

¶ 22 (2d Dist.):

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

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, 2000 WL 1700073, *2 (5th Dist. Nov. 13, 2000), quoting In re Awkal, 95 Ohio

App.3d 309, 316 (8th Dist. 1994). {¶ 18} Kimberly Gabel testified SCDJFS first became involved with mother in May

of 2023 because mother could not handle the three-month old child's crying; mother had

thrown the child and tried to smother the child with a pillow. T. at 5. Safety plans were

implemented and Ms. Gabel began working with the family in August 2023. Id. Non-

court intensive services were provided to mother, but "the overall risk of harm was not

able to be reduced" so the agency filed a formal complaint on December 6, 2023. T. at

6-7. Mother completed many of the objectives of her case plan, including obtaining

assessments and mental health counseling, engaging in case management, and securing

housing. T. at 8-9. Mother has PTSD and has "endured significant abuse and neglect

throughout her life" at the hands of her parents; mother refused to take recommended

prescribed medications that would help her. T. at 9-10, 24-26. Ms. Gabel had to track

down mother's housing and was not convinced that mother was actually living at the

purported address. T. at 10-11. Mother was unwilling to provide Ms. Gabel with

"information in general" and mother often ignored the caseworker. T. at 11. Mother was

easily influenced by others, refused to provide any supplies for the child, and did not visit

with the child as often as she was offered or accompany the child to medical

appointments. T. at 12-14. At times Ms. Gabel felt as if she was forcing mother to visit

the child. T. at 13. Ms. Gabel believed mother was pregnant, but mother denied she was

pregnant. T. at 14. Mother also denied being in a relationship, but the caseworker found

evidence of a man in her life, a man with a child endangering charge. T. at 15-16. Ms.

Gabel opined mother was not receptive to receiving help and did not "have a consistent

pattern of being honest and truthful." T. at 15. The caseworker was concerned mother

would be unable to keep the child safe and meet the child's needs. Id. Mother has a low IQ and has lower cognitive abilities. T. at 17. Ms. Gabel testified while mother has

gone through the motions of services, there have been no meaningful changes and there

remained a large risk that has not been reduced. T. at 17-18. Ms. Gabel opined the

significant risks to the child could not be alleviated in a year or in the foreseeable future.

T. at 18. With all the intensive services mother has received, she has failed to make any

significant progress and the caseworker had "no reason to believe that any extension of

time would prove any different." T. at 31-32. While "D.D." services were discussed with

mother several times, she refused to comply. T. at 35-36.

{¶ 19} Dr. Thomas performed mother's parenting evaluation. T. at 40-41; State's

Exhibit A. Dr. Thomas confirmed mother had a traumatic childhood. T. at 41-42. Mother

did not want to discuss her mental health issues which was common, but if mother could

not acknowledge or accept her mental health symptoms, needed services could not be

provided to help her. T. at 43. Dr. Thomas testified mother met the criteria for intellectual

disabilities mild; "she's at a level of a 14-year old with verbal skills, but a 6-year old with

regard to her non-verbal skills." T. at 43-44. Non-verbal skills are important "because

that looks at the ability to take information from one setting and apply it to another." T. at

44. People with this level of intellectual disability require extensive support to raise

children that would be indefinite; it does not get better over time or with additional

education. T. at 46. Mother would need a lot of intensive family support to parent a child,

but the "same people she would rely on are the people that were unable to keep her safe

during childhood." T. at 47. Mother had trouble receiving, learning from, applying, and

internalizing information. T. at 44. Her judgment thinking and cause and effect thinking

were significantly impaired. Id. She would have difficulties "seeing potential negative situations in the future" as well as identifying that someone with a criminal history would

be bad to have around the child. T. at 55. She "would be more vulnerable to people who

may be able to manipulate her." Id. These factors "can prevent her or preclude her from

keeping the child safe." Id. During her conversations with mother, mother was defensive

and avoidant. T. at 45. It was concerning to Dr. Thomas if mother refused her mental

health medications, failed to successfully complete Goodwill Parenting, and was resistant

to visiting the child because it could affect attachment and bonding with the child. T. at

48-49. Dr. Thomas recommended the Goodwill Parenting Program because it was able

to meet mother's cognitive deficits by providing hands-on-learning and repetition. T. at

56. While Dr. Thomas offered recommendations to assist mother, they came "with a

caveat, that there is concern that her prognosis was poor." T. at 46.

{¶ 20} Jennifer Fire from Goodwill Parenting testified mother completed the

program and had perfect attendance. T. at 60; State's Exhibit B. But mother had an

inability to demonstrate new skills and visitations with the child "were a really big struggle."

T. at 61. She could not read her child's cues as to when the child was hungry or bored.

Id. One-on-one assistance was offered to help mother, but she refused. T. at 63-65.

Goodwill staff had to stand right over mother during some of the visitations for the safety

of the child e.g., prevent mother from getting upset and grabbing the child. T. at 69. At

the conclusion of the program, unsupervised visitations were not recommended because

of mother's lack of progress and the step-by-step direction that was needed. T. at 72.

Ms. Fire did not have any faith that if mother redid the program or participated in another

program, she would be able to learn how to apply information learned. T. at 72-73. {¶ 21} Shawnette Britton from Help Me Grow explained they are a home visiting

program that provides parenting education. T. at 88-89. Help Me Grow became involved

with mother through a referral from Aultman Hospital prior to the agency's involvement.

T. at 90. At the beginning, the concern was mother's inability to recognize the child's

cues. T. at 92. Mother was very receptive and did well with one-on-one instruction. T.

at 93.

{¶ 22} The guardian ad litem filed a report recommending permanent custody to

SCDJFS. Guardian ad Litem Report filed August 22, 2024.

{¶ 23} Under R.C. 2151.415(D), a trial court may extend temporary custody for up

to six months "if it determines at the hearing, by clear and convincing evidence, that the

extension is in the best interest of the child, there has been significant progress on the

case plan of the child, and there is reasonable cause to believe that the child will be

reunified with one of the parents or otherwise permanently placed within the period of

extension."

{¶ 24} In its September 3, 2024 judgment entry, the trial court found

notwithstanding reasonable case planning and SCDJFS's diligent efforts, mother "has

failed continuously and repeatedly to remedy the conditions" that caused the child to be

placed outside the home. The child cannot "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.

September 3, 2024 Findings of Fact and Conclusions at 7-28. The trial court found the

caseworker's testimony to be credible and noted while mother completed many aspects

of the case plan, she goes through the motions with no meaningful change to reduce significant risks to the child. Mother lies and ignores issues, is uncooperative, lacks

insight, is unable to read the child's cues, refuses to take prescribed medications to

improve her mental health, and refuses one-on-one individual assistance; mother's

thinking and cognitive skills are severely impaired. The trial court also noted the testimony

revealed it would not make sense to give mother additional time to work the case plan

because there has not been any significant change or progress with either the non-court

or formal court phase; mother's prognosis was poor due to her issues and her low IQ, she

cannot improve over time. Findings of Fact Nos. 80 and 107.

{¶ 25} This is a challenging case based on mother's developmental disability. She

loves her child and wants to be her parent. But the best interest determination focuses

on the child, not the parent. In re C.T., 2020-Ohio-4965, ¶ 57 (5th Dist.). The agency

attempted to connect mother with services to address her developmental disabilities, but

mother refused the services. Even if mother complied, her IQ would not change and the

paramount concern was for the safety of the child; witnesses testified mother would be

unable to safely parent the child without intensive support.

{¶ 26} Based upon the cited testimony, we find there was clear and convincing

evidence to support the trial court's findings that the child could not be placed with mother

within a reasonable time and should not be placed with mother; the trial court did not

abuse its discretion in denying an extension.

{¶ 27} During the best interest portion of the hearing, the caseworker testified the

child has been in a third-party kinship home since August 2023, was bonded to the family,

and was thriving. T. at 102-103. The caseworker opined mother loves the child, but was

concerned she was not attached to the child. T. at 105. Mother has a good working relationship with the kinship caregivers and she could potentially have some contact with

the child throughout her life. T. at 102-103. The caseworker opined the benefit of

permanent custody would outweigh any potential damage to the child and permanent

custody was in the best interest of the child. T. at 106.

{¶ 28} Mother testified she would like to do the Goodwill Parenting Program again.

T. at 112. She thought it would be different the second time "if they could help me a lot

more, like with my learning disability and everything." Id. She requested more time to

get her child back. T. at 113. On cross-examination, mother was evasive when asked if

she was pregnant, but finally admitted that she was. T. at 114-115. Father of the baby

is the man mother denied having a relationship with, the man with a conviction for child

endangering. T. at 115-116. Mother does not believe anything that happened was his

fault. T. at 116-117.

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

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

permanence" and the child deserves to be "in a stable, loving environment." September

3, 2024 Findings of Fact and Conclusions of Law.

{¶ 30} Based upon the testimony presented, we find clear and convincing evidence

to support the trial court's decisions. 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

child to SCDJFS; we do not find any manifest miscarriage of justice.

{¶ 31} Assignments of Error I and II are denied. III

{¶ 32} In her third assignment of error, mother claims the trial court committed plain

error in failing to follow the Indian Child Welfare Act of 1978. We disagree.

{¶ 33} The Indian Child Welfare Act was enacted "for the protection and

preservation of Indian tribes and their resources." 25 U.S.C.A. 1901(2). Congress was

concerned that "an alarmingly high percentage of Indian families are broken up by the

removal, often unwarranted, of their children from them by nontribal public and private

agencies . . . . 25 U.S.C.A. 1901(4). Congress acknowledged "there is no resource that

is more vital to the continued existence and integrity of Indian tribes than their children

and that the United States has a direct interest, as trustee, in protecting Indian children

who are members of or are eligible for membership in an Indian tribe." 25 U.S.C.A.

1901(3). Therefore, state courts are required to "ask each participant in an emergency

or voluntary or involuntary child-custody proceeding whether the participant knows or has

reason to know that the child is an Indian child. The inquiry is made at the

commencement of the proceeding and all responses should be on the record." 25 C.F.R.

23.107(a). "A court's failure to identify Indian children can nullify court proceedings that

have not been conducted in accordance with the Act." In re L.M., 2024-Ohio-5549 ¶ 13

(12th Dist.), citing Adm.Code 5101:2-53-02.

{¶ 34} Because Mother did not raise this issue in the trial court, she has forfeited

all but plain error on appeal. In re S.M., 2025-Ohio-34, ¶ 15 (9th Dist.). Civil plain error

is "error, to which no objection was made at the trial court, seriously affects the basic

fairness, integrity, or public reputation of the judicial process, thereby challenging the

legitimacy of the underlying judicial process itself." Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus. In applying the doctrine, reviewing courts "must proceed with the

utmost caution, limiting the doctrine strictly to those extremely rare cases where

exceptional circumstances require its application to prevent a manifest miscarriage of

justice, and where the error complained of, if left uncorrected, would have a material

adverse effect on the character of, and public confidence in, judicial proceedings." Id. at

121.

{¶ 35} The permanent custody hearing transcript is devoid of any inquiry as to

whether the child was an Indian child. But the Act states the inquiry "is made at the

commencement of the proceeding." An adjudicatory hearing was held on January 31,

2024, at which mother was present, and that transcript is not in the record. Without a

transcript to review, we presume the trial court conducted an inquiry at the

commencement of these proceedings. In re S.M., 2025-Ohio-34 ¶ 16 (9th Dist.). In

addition, the December 12, 2023 and February 1, 2024 case plans that mother reviewed

and agreed to indicated the child was not protected by the Act.

{¶ 36} The Act applies to an "Indian child" that means "any unmarried person who

is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for

membership in an Indian tribe and is the biological child of a member of an Indian tribe."

25 U.S.C.A. 1903(4). We note mother does not argue to this court that the child is an

Indian child. There is no indication the child is of Indian heritage or meets the criteria of

25 U.S.C.A. 1903(4).

{¶ 37} As cited by mother in her appellate brief at 22, Ohio courts have nullified

determinations terminating parental rights and granting permanent custody to the agency

in cases where the Act has not been followed. In re L.M., 2024-Ohio-5549 (12th Dist.); In re D.E., 2021-Ohio-524 (10th Dist.); In re R.G., 2016-Ohio-7897 (8th Dist.). But we

find these cases to be distinguishable. In L.M., there was no indication that mother was

put on notice of the potential for the Act to apply. Here, mother was put on notice via the

case plans. In D.E., the trial court failed to make a proper inquiry after mother claimed to

have Native American heritage in her background. Here, there was no indication of Indian

heritage. In R.G., the trial court asked the caseworker at the initial hearing if the child had

any Native American ancestry, outside the presence of the child's parents. Here, without

a transcript of the initial hearing wherein mother was present, we can only presume

mother was asked.

{¶ 38} Even assuming arguendo that the trial court failed to properly inquire, based

on the state of the record before us, we cannot say that but for this "plain error" the Act

would have been found to apply. We do not find any plain error that seriously affected

the legitimacy of the underlying proceedings or caused a manifest miscarriage of justice.

{¶ 39} Assignment of Error III is denied. {¶ 40} The judgment of the Court of Common Pleas of Stark County, Ohio, Family

Court Division, is hereby affirmed.

By: King, J.

Baldwin, P.J. and

Gormley, J. concur.