[Cite as In re M.M., 2021-Ohio-2287.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PIKE COUNTY
In the Matter of: : : Case No. 20CA907 M.M. : : : : DECISION AND JUDGMENT : ENTRY : : RELEASED: 06/28/2021 : _____________________________________________________________ APPEARANCES:
Karyn Justice, Portsmouth, Ohio, for Appellant.
Lauren E. Coriell, Waverly, Ohio, for Appellee.
Matthew P. Brady, Grove City, Ohio, Guardian Ad Litem. _____________________________________________________________
Wilkin, J.
{¶1} Appellant, J.M., appeals the Pike County Court of Common Pleas,
Juvenile Division’s, judgment that granted Pike County Children Services Board
(“the agency”) permanent custody of her now seven-year-old biological child,
M.M. In her sole assignment of error, appellant asserts that the trial court’s
decision is against the manifest weight and sufficiency of the evidence. We do
not agree with appellant’s argument. The record contains ample, clear and
convincing evidence to support the trial court’s decision to grant the agency
permanent custody of M.M. Therefore, we affirm the trial court’s judgment. Pike App. No. 20CA907 2
FACTS AND PROCEDURAL BACKGROUND
{¶2} In March 2018, the agency received a report that appellant had been
abusing illegal drugs and this caused concern for the welfare of her then four-
year-old child, M.M. The agency’s caseworker, Bobbie Jo Dietzel, went to
appellant’s home to investigate. Dietzel spoke with appellant regarding the
agency’s concerns, and appellant submitted to a drug screen. Appellant tested
positive for methamphetamines, cocaine, amphetamines, and marijuana.
{¶3} Dietzel asked appellant whether any relatives were available to care
for M.M. Appellant identified her adult daughter, P.L., as a placement. However,
P.L. was ill at the time and unable to take care of M.M.
{¶4} The agency subsequently obtained emergency custody of M.M., and
filed a complaint alleging that M.M. was an abused, neglected and dependent
child. The agency further requested temporary custody of M.M.
{¶5} On June 14, 2018, the trial court adjudicated M.M. a neglected and
dependent child and dismissed the abuse allegation. Shortly thereafter, the trial
court entered a dispositional order that placed M.M. in the agency’s temporary
custody.
{¶6} The agency developed a case plan for the family with the goal to
reunify M.M. with appellant. The case plan required appellant to maintain stable
housing, to ensure that the child’s basic needs are met, to undergo inpatient
substance abuse treatment and to follow treatment recommendations, and to
take domestic violence and parenting classes. Pike App. No. 20CA907 3
{¶7} Over the course of a year and one-half, appellant maintained stable
housing, consistently visited with the child, and completed domestic violence and
parenting classes. However, despite numerous attempts, appellant was unable
to successfully complete a substance abuse treatment program and she failed to
maintain clean drug screens.
{¶8} Thus, on December 5, 2019, the agency filed a motion to modify the
disposition from temporary custody to permanent custody. The agency alleged
that M.M. has been in its temporary custody for 12 or more months of a
consecutive 22-month period and that placing M.M. in its permanent custody is in
the child’s best interest.
{¶9} On June 4, 2020, the trial court held a hearing to consider the
agency’s request for permanent custody. Caseworker Dietzel testified that she
was unable to find a relative to care for M.M., so the child remained in the
temporary custody of the agency since the initial removal. Dietzel explained that
appellant has maintained housing and completed domestic violence and
parenting classes, but appellant has not successfully conquered her substance
abuse issues and continued to test positive for illegal substances into the year
2020.
{¶10} Dietzel testified that M.M. currently lives in a foster home and has
been in this home since August 2019. Dietzel indicated that M.M. appears “very
bonded” with the foster parent and seems happy. Dietzel stated that M.M. had
been in a previous foster home but had displayed aggressive behaviors such as
pushing another child into the road and choking some of the other children. Pike App. No. 20CA907 4
Dietzel explained that since M.M. entered the new foster home, her aggressive
behaviors have stopped and Dietzel has noticed a “huge difference” in M.M.’s
behaviors.
{¶11} The permanent custody hearing was continued until September
2020. In the interim, appellant filed a motion requesting the trial court to place
M.M. in the legal custody of the child’s older sister, P.L.
{¶12} When the hearing resumed in September 2020, Dietzel explained
that since the last hearing in June 2020, appellant has refused to submit to drug
tests and had revoked the release of information from treatment providers. As a
result, Dietzel was unable to ascertain the status of appellant’s substance abuse
treatment.
{¶13} Dietzel testified that M.M. has remained in the same foster home
since the date of the last hearing and that she is “very well adjusted” and seems
“very bonded with everyone in that home.” Dietzel indicated that M.M.’s behavior
can be “kind of rough” the day after visiting with appellant. Dietzel stated that
M.M. sometimes is “very aggressive towards the other kids.”
{¶14} Dietzel related that during a July 2020 visit, Dietzel heard appellant
tell M.M. that she would “have to go to [P.L.’s] for awhile while Mommy’s [sic]
finishes school. And then you will come back to me.” Dietzel stated that she
advised appellant that said statement was “very concerning.”
{¶15} The foster parent testified that M.M.’s behavior has significantly
improved since the date the child first entered her home. The foster parent
stated that M.M. initially had “bonding issues,” “[t]rust issues,” and “was Pike App. No. 20CA907 5
completely out of control.” The foster parent explained that over the past year,
M.M. has tried a few different medications to help with her behaviors and she has
received counseling. The foster parent indicated that both treatments seemed to
help improve M.M.’s behaviors. The foster parent further testified that once the
pandemic restrictions brought an end to M.M.’s in-person visits with appellant,
M.M. was able to stop taking medication and “her behavior was immaculate.”
{¶16} The foster parent stated that she intends to adopt M.M. if the trial
court grants the agency permanent custody of the child. The foster parent
testified that M.M. is “very bonded” and “pretty much inseparable” from the foster
parent’s eight-year-old daughter.
{¶17} P.L. testified that she believes placing M.M. in her legal custody
would be in the child’s best interest. P.L. explained that although she and M.M.
are siblings, the 16-year age gap between them has led her to think of M.M. “kind
of like [a] daughter.” P.L. stated that she was part of M.M.’s everyday life until
she moved out of appellant’s apartment and into another apartment in the same
complex. P.L. related that even after she moved into her own apartment, she still
saw M.M. “almost every single day.”
{¶18} P.L. stated that after the agency obtained temporary custody of
M.M., she attended visits with appellant until the pandemic restrictions no longer
allowed appellant to visit. P.L. explained that during an overnight weekend visit
in April 2019, she cut the visit short for a variety of reasons. P.L. indicated that at
the time, M.M. had not been taking medication for her behavioral issues and P.L.
was five or six months pregnant. She stated that M.M.’s “behavior was Pike App. No. 20CA907 6
overwhelming [her]” and “causing a lot of stress.” P.L. further explained that at
the time, she was living in a two-bedroom apartment and was concerned the
apartment would not be large enough for her growing family and M.M. P.L.
testified that she wanted to obtain legal custody of M.M., but she also was
struggling with the decision due to M.M.’s behavioral issues.
{¶19} P.L. stated that she now lives in a three-bedroom apartment with
her husband and their two young children. She explained that M.M. would have
her own bedroom and that her younger children would share a room.
{¶20} P.L. recognized the agency’s concern that placing M.M. in her
apartment, the same apartment complex as appellant, would create problems.
P.L. stated she would be willing to move and that moving is part of her long-term
plan. She also explained that she would protect M.M. from appellant, if appellant
continues to use illegal drugs.
{¶21} On cross-examination, P.L. agreed that in December of 2019, when
the agency filed its permanent custody motion, she was unable to take custody of
M.M. P.L. further agreed that living in the same apartment complex as appellant
“would be difficult” but stated that she is willing to move and that appellant also is
willing to move.
{¶22} The guardian ad litem (GAL) testified he believes placing M.M. in
the agency’s permanent custody is in the child’s best interest. He explained that
he has concerns about placing M.M. in P.L.’s legal custody due to the potential
contact that may occur between appellant and the child. The GAL indicated that
contact with appellant “would be traumatic for the minor child.” He further stated Pike App. No. 20CA907 7
that he has concerns about the financial stability of P.L.’s home. The GAL
explained he learned during P.L.’s testimony that she and her husband had some
marital troubles and that her husband has only been living with her for about
three to four months.
{¶23} The court asked the GAL his opinion about M.M. having contact with
appellant. The GAL stated that it would “be pretty rough.” He indicated that
when talking with M.M., the child’s “wishes are inconsistent about what she
ultimately wants. But she does not want to be with her mother.” The GAL
thought that “forcing visits at this time would be traumatic.”
{¶24} On October 22, 2020, the trial court granted the agency permanent
custody of M.M. The court found that M.M. has been in the agency’s temporary
custody for more than 12 of the past 22 consecutive months and granting the
agency permanent custody is in the child’s best interest. The court noted that
appellant failed to complete a drug treatment program and she continues to
abuse illegal substances. The court further observed that M.M. “shares a very
strong bond with her foster family” and the foster family will seek to adopt the
child. The court found that M.M. is too young to express her wishes but noted
that the GAL recommended granting the agency permanent custody. The court
additionally determined that M.M. needs a legally secure permanent placement
and the child cannot achieve this type of placement without granting the agency
permanent custody.
{¶25} The trial court denied appellant’s motion to place M.M. in P.L.’s legal
custody. The court did not believe that P.L. could provide the child with a legally Pike App. No. 20CA907 8
secure permanent placement. The court further expressed concern whether P.L.
would adequately protect the child from appellant’s substance abuse. The court
observed that Dietzel testified that she heard appellant tell M.M. that she would
be staying with P.L. for a while and then would be back home with appellant.
The court additionally noted that “P.L. allowed M.M. to languish in foster care for
nearly two (2) years before she was willing to be considered for placement.”
{¶26} The court thus terminated appellant’s parental rights and granted
the agency permanent custody of M.M. This appeal followed.
ASSIGNMENT OF ERROR
THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY OF M.M. TO THE PIKE COUNTY CHILDREN SERVICES BOARD (PCCSB) WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶27} In her sole assignment of error, appellant argues that the trial court’s
decision to grant the agency permanent custody of M.M. is against the manifest
weight of the evidence. Appellant contends that the evidence fails to clearly and
convincingly show that terminating her parental rights is in M.M.’s best interest.
Appellant asserts that the trial court failed to appropriately consider the strong
familial bonds that M.M. shares with appellant and P.L.
{¶28} Appellant also challenges the trial court’s finding that M.M. cannot
achieve a legally secure permanent placement without granting the agency
permanent custody. Appellant candidly agrees that she presently is unable to be
M.M.’s legal custodian. She instead claims the trial court should have placed the
child with P.L. rather than terminate appellant’s parental rights. Appellant argues Pike App. No. 20CA907 9
that P.L. could provide the child with a legally secure permanent placement and
terminating appellant’s parental rights was unnecessary.
{¶29} Appellant additionally asserts that the trial court’s decision to deny
her motion to place M.M. in P.L.’s custody is against the manifest weight of the
evidence.
STANDARD OF REVIEW
{¶30} Generally, a reviewing court will not disturb a trial court’s permanent
custody decision unless the decision is against the manifest weight of the
evidence. E.g., In re B.E., 4th Dist. Highland No. 13CA26, 2014-Ohio-3178.
2014 WL 3557277, ¶ 27; In re R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-
5569, 2013 WL 6710797, ¶ 29.
“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.’ ”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12,
quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),
quoting Black’s Law Dictionary 1594 (6th Ed.1990).
{¶31} When an appellate court reviews whether a trial court’s permanent
custody decision is against the manifest weight of the evidence, the court
“ ‘ “weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the
[finder of fact] clearly lost its way and created such a manifest miscarriage of Pike App. No. 20CA907 10
justice that the [judgment] must be reversed and a new trial ordered.” ’ ”
Eastley at ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750
N.E.2d 176 (9th Dist. 2001), quoting Thompkins, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.
1983); accord In re Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208, 2002
WL 987852, ¶¶ 23-24. We further observe, however, that issues relating to the
credibility of witnesses and the weight to be given the evidence are primarily for
the trier of fact. As the court explained in Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):
The 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.
Moreover, deferring to the trial court on matters of credibility is “crucial in a child
custody case, where there may be much evident in the parties’ demeanor and
attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio
St.3d 415, 419, 674 N.E.2d 1159 (1997); accord In re Christian, 4th Dist. No.
04CA 10, 2004-Ohio-3146, 2004 WL 1367999, ¶ 7.
{¶32} The question that an appellate court must resolve when reviewing a
permanent custody decision under the manifest weight of the evidence standard
is “whether the juvenile court’s findings * * * were supported by clear and
convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895
N.E.2d 809, ¶ 43; accord In re A.M., --- Ohio St.3d ---, 2020-Ohio-5102, --- Pike App. No. 20CA907 11
N.E.3d ---, ¶ 19; In re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308,
¶ 26.
“Clear and convincing evidence” is:
the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04, 495 N.E.2d 23 (1986).
{¶33} In determining whether a trial court based its decision upon clear
and convincing evidence, “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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54
(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985),
citing Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954) (“Once the
clear and convincing standard has been met to the satisfaction of the [trial] court,
the reviewing court must examine the record and determine if the trier of fact had
sufficient evidence before it to satisfy this burden of proof.”); In re Adoption of
Lay, 25 Ohio St.3d 41, 42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of Masa,
23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986) (stating that whether a fact has
been “proven by clear and convincing evidence in a particular case is a
determination for the [trial] court and will not be disturbed on appeal unless such
determination is against the manifest weight of the evidence”).
{¶34} Thus, if a children services agency presented competent and
credible evidence upon which the trier of fact reasonably could have formed a Pike App. No. 20CA907 12
firm belief that permanent custody is warranted, then the court’s decision is not
against the manifest weight of the evidence. In re R.M., 997 N.E.2d 169, 2013-
Ohio-3588 (4th Dist.), ¶ 62; In re R.L., 2nd Dist. Greene Nos. 2012CA32 and
2012CA33, 2012-Ohio-6049, 2012 WL 6674527, ¶ 17, quoting In re A.U., 2nd
Dist. Montgomery No. 22287, 2008-Ohio-187, 2008 WL 185494, ¶ 9 (“A
reviewing court will not overturn a court’s grant of permanent custody to the state
as being contrary to the manifest weight of the evidence ‘if the record contains
competent, credible evidence by which the court could have formed a firm belief
or conviction that the essential statutory elements * * * have been established.’ ”).
{¶35} Once a reviewing court finishes its examination, the judgment may
be reversed only if it appears that the fact-finder, when resolving the conflicts in
evidence, “ ‘clearly lost its way and created such a manifest miscarriage of justice
that the [judgment] must be reversed and a new trial ordered.’ ” Thompkins, 78
Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983). A reviewing court should find a trial court’s permanent
custody decision against the manifest weight of the evidence only in the
“ ‘exceptional case in which the evidence weighs heavily against the
[decision].’ ” Id., quoting Martin, 20 Ohio App.3d at 175; accord State v. Lindsey,
87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
FUNDAMENTAL NATURE OF PARENTAL RIGHTS
{¶36} We recognize that “parents’ interest in the care, custody, and control
of their children ‘is perhaps the oldest of the fundamental liberty interests
recognized by th[e United States Supreme] Court.’ ” In re B.C., 141 Ohio St.3d Pike App. No. 20CA907 13
55, 2014-Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530 U.S.
57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the right to raise one’s
“child is an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155,
157, 556 N.E.2d 1169 (1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679
N.E.2d 680 (1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388,
71 L.Ed.2d 599 (1982) (stating that “natural parents have a fundamental right to
the care and custody of their children”). Thus, “parents who are ‘suitable’ have a
‘paramount’ right to the custody of their children.” B.C. at ¶ 19, quoting In re
Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing Clark v. Bayer, 32
Ohio St. 299, 310 (1877); Murray, 52 Ohio St.3d at 157.
{¶37} A parent’s rights, however, are not absolute. In re D.A., 113 Ohio
St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11. Rather, “ ‘it is plain that the
natural rights of a parent * * * are always subject to the ultimate welfare of the
child, which is the polestar or controlling principle to be observed.’ ” In re
Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re
R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus, the state may terminate
parental rights and grant permanent custody to a children services agency when
a child’s best interest demands it. D.A. at ¶ 11.
PERMANENT CUSTODY PROCEDURE
{¶38} Before a court may award a children services agency permanent
custody of a child, R.C. 2151.414(A)(1) requires the court to hold a hearing. The
primary purpose of the hearing is to allow the court to determine whether the
child’s best interests would be served by permanently terminating the parental Pike App. No. 20CA907 14
relationship and by awarding permanent custody to the agency. Id. Additionally,
when considering whether to grant a children services agency permanent
custody, a trial court should consider the underlying purposes of R.C. Chapter
2151: “to care for and protect children, ‘whenever possible, in a family
environment, separating the child from the child’s parents only when necessary
for the child's welfare or in the interests of public safety.’ ” In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, ¶ 29, 862 N.E.2d 816, quoting R.C. 2151.01(A).
{¶39} A children services agency may obtain permanent custody of a child
by (1) requesting it in an abuse, neglect or dependency complaint under R.C.
2151.353, or (2) filing a motion under R.C. 2151.413 after obtaining temporary
custody. In this case, the agency sought permanent custody of the child by filing
a motion under R.C. 2151.413. When an agency files a permanent custody
motion under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A).
{¶40} R.C. 2151.414(B)(1) permits a trial court to grant permanent custody
of a child to a children services agency if the court determines, by clear and
convincing evidence, that the child’s best interest would be served by the award
of permanent custody and that one of the following conditions applies:
(a) The child is not abandoned or orphaned or has not 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 ending on or after March 18, 1999, 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 Pike App. No. 20CA907 15
twelve or more months of a consecutive twenty-two month period ending on or after March 18, 1999. (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.
{¶41} Thus, before a trial court may award a children services agency
permanent custody, it must find, by clear and convincing evidence, (1) that one of
the circumstances described in R.C. 2151.414(B)(1)(a)-(e) applies, and (2) that
awarding the children services agency permanent custody would further the
child’s best interest.
A. R.C. 2151.414(B)(1)(d)
{¶42} In the case at bar, the trial court found that the child has been in the
agency’s temporary custody for 12 or more months of a consecutive 22-month
period and, therefore, that R.C. 2151.414(B)(1)(d) applies. Appellant does not
dispute the trial court’s R.C. 2151.414(B)(1)(d) finding, so we do not address it.
B. BEST INTEREST
{¶43} R.C. 2151.414(D) directs a trial court to consider “all relevant
factors,” as well as specific factors, to determine whether a child’s best interest
will be served by granting a children services agency permanent custody. The
listed factors include: (1) the child’s interaction and interrelationship with the
child’s parents, siblings, relatives, foster parents and out-of-home providers, and
any other person who may significantly affect the child; (2) the child’s wishes, as
expressed directly by the child or through the child’s GAL, with due regard for the
child’s maturity; (3) the child’s custodial history; (4) the child’s need for a legally
secure permanent placement and whether that type of placement can be Pike App. No. 20CA907 16
achieved without a grant of permanent custody to the agency; and (5) whether
any factors listed under R.C. 2151.414(E)(7) to (11) apply.1
{¶44} Deciding whether a grant of permanent custody to a children
services agency will promote a child’s best interest involves a delicate balancing
of “all relevant [best interest] factors,” as well as the “five enumerated statutory
factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-
5513, 857 N.E.2d 532, ¶ 56; accord In re C.G., 9th Dist. Summit Nos. 24097 and
24099, 2008-Ohio-3773, 2008 WL 2906526, ¶ 28; In re N.W., 10th Dist. Franklin
Nos. 07AP-590 and 07AP-591, 2008-Ohio-297, 2008 WL 224356, ¶ 19.
However, none of the best interest factors requires a court to give it “greater
weight or heightened significance.” C.F. at ¶ 57. Instead, the trial court
considers the totality of the circumstances when making its best interest
determination. In re K.M.S., 3rd Dist. Marion Nos. 9-15-37, 9-15-38, and 9-15-
39, 2017-Ohio-142, 2017 WL 168864, ¶ 24; In re A.C., 9th Dist. Summit No.
27328, 2014-Ohio-4918, ¶ 46. In general, “[a] child’s best interest is served by
placing the child in a permanent situation that fosters growth, stability, and
security.” In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19, 2016-
Ohio-916, 2016 WL 915012, ¶ 66, citing In re Adoption of Ridenour, 61 Ohio
St.3d 319, 324, 574 N.E.2d 1055 (1991).
1 The factors listed under R.C. 2151.414(E)(7) through (11) require courts to consider the following: (1) whether a parent has been convicted of or pleaded guilty to specific criminal offenses against the child, the child’s sibling or another child who lived in the parent’s household; (2) whether a parent withheld medical treatment or food from the child; (3) whether a parent repeatedly placed the child at substantial risk of harm because of alcohol or drug abuse; (4) whether a parent abandoned the child; and (5) whether a parent’s parental rights as to a sibling of the child have been involuntarily terminated. Pike App. No. 20CA907 17
{¶45} In the case at bar, we believe that the record contains ample, clear
and convincing evidence to support the trial court’s decision that placing M.M. in
the agency’s permanent custody is in the child’s best interest. The record fails to
support a finding that the trial court committed a manifest miscarriage of justice.
Therefore, the trial court’s judgment is not against the manifest weight of the
1. Child’s Interactions and Interrelationships
{¶46} The testimony presented during the permanent custody hearing
shows that appellant dearly loves M.M., and that she shared a close bond with
the child. Appellant consistently visited M.M., and the agency did not express
concerns about her interaction with the child.
{¶47} However, appellant’s drug use interfered and continues to interfere
with her ability to be a consistent presence in the young child’s life. We
commend appellant for recognizing her addiction and for agreeing that she is
unable to take custody of M.M. while her substance abuse issues persist.
Nonetheless, appellant’s decision to elevate her drug use over parenting M.M.
has placed the child’s well-being at risk. The evidence shows that M.M.
displayed aggressive behaviors and eventually was placed on medication to
control her hyperactivity. The GAL stated that M.M. would experience trauma if
forced to visit appellant. Thus, even if the surface interactions between appellant
and M.M. appeared appropriate, the deeper levels of the interrelationship
suggest that a continuing relationship would be detrimental to the child’s well-
being. Pike App. No. 20CA907 18
{¶48} P.L. and her family also share a relationship with M.M. The
evidence shows that P.L. cares for M.M. and would like to take custody of the
child. However, P.L. did not file a motion for custody of M.M. Instead, appellant
filed a motion that asked the court to place M.M. with P.L. Additionally, when
M.M. was scheduled for a two-day weekend visit with P.L., P.L. called the foster
parent within the first day of the visit and asked the foster parent to pick up M.M.
a day sooner than scheduled. The trial court and the agency also expressed
concern whether P.L. would be able or willing to adequately protect the child from
appellant.
{¶49} M.M. has bonded with the foster family. M.M. appears especially
bonded to the foster parent’s eight-year-old daughter. The foster parent
described the two as “inseparable.”
{¶50} To the extent appellant asserts that the trial court was required to
explicitly discuss each of M.M.’s interactions and interrelationships in its decision,
the Ohio Supreme Court has rejected the notion that a trial court must comment
on each individual best-interest factor in its decision. In re A.M., 2020-Ohio-
5102, ¶ 31. Instead, the A.M. court stated that the record simply must show that
the trial court indeed considered (i.e., reflected upon or thought about with a
degree of care or caution) each factor. Id. at ¶ 25 and ¶ 31.
{¶51} Here, the record shows that the trial court considered M.M.’s
interactions and interrelationships, including M.M.’s interactions and
interrelationships with appellant and P.L. Simply because the trial court did not Pike App. No. 20CA907 19
explicitly discuss those interactions and interrelationships in its written decision
does not mean that the court failed to consider them.
2. Child’s Wishes
{¶52} The trial court determined that M.M. is too young to directly express
her wishes. The court noted that the GAL recommended that the court grant the
agency permanent custody of M.M.
3. Custodial History
{¶53} M.M. lived with appellant for the first four years of her life. In March
2018, the agency obtained temporary custody of M.M., and the child has
remained in its custody since that time.
{¶54} Following M.M.’s March 2018 removal, the agency placed her in a
foster home. The agency eventually moved M.M. to a second foster home,
where she has since remained.
4. Legally Secure Permanent Placement
{¶55} “Although the Ohio Revised Code does not define the term, ‘legally
secure permanent placement,’ this court and others have generally interpreted
the phrase to mean a safe, stable, consistent environment where a child’s needs
will be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, 2016
WL 818754, ¶ 56, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL
925423, *9 (Aug. 9, 2001) (implying that “legally secure permanent placement”
means a “stable, safe, and nurturing environment”); see also In re K.M., 10th
Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-Ohio-4682, 2015 WL 7079930,
¶ 28 (observing that legally secure permanent placement requires more than Pike App. No. 20CA907 20
stable home and income but also requires environment that will provide for child's
needs); In re J.H., 11th Dist. Lake No. 2012-L-126, 2013-Ohio-1293, 2013 WL
1294646, ¶ 95 (stating that mother unable to provide legally secure permanent
placement when she lacked physical and emotional stability and that father
unable to do so when he lacked grasp of parenting concepts); In re J.W., 171
Ohio App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.) (Sadler, J.,
dissenting) (stating that a legally secure permanent placement means “a
placement that is stable and consistent”); Black’s Law Dictionary 1354 (6th Ed.
1990) (defining “secure” to mean, in part, “not exposed to danger; safe; so
strong, stable or firm as to insure safety”); id. at 1139 (defining “permanent” to
mean, in part, “[c]ontinuing or enduring in the same state, status, place, or the
like without fundamental or marked change, not subject to fluctuation, or
alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or
transient”). Thus, “[a] legally secure permanent placement is more than a house
with four walls. Rather, it generally encompasses a stable environment where a
child will live in safety with one or more dependable adults who will provide for
the child’s needs.” M.B. at ¶ 56.
{¶56} Moreover, a trial court that is evaluating a child’s need for a legally
secure permanent placement, and whether the child can achieve that type of
placement, need not determine that terminating parental rights is “not only a
necessary option, but also the only option.” Schaefer at ¶ 64. Rather, once a
court finds the existence of any one of the R.C. 2151.414(B)(1)(a)-(e)
factors, R.C. 2151.414(D)(1) requires the court to weigh “all the relevant factors * Pike App. No. 20CA907 21
* * to find the best option for the child.” Id. “The statute does not make the
availability of a placement that would not require a termination of parental rights
an all-controlling factor. The statute does not even require the court to weigh that
factor more heavily than other factors.” Id. Instead, a child’s best interest is
served by placing the child in a permanent situation that fosters growth, stability,
and security. In re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d
1055 (1991). Thus, courts are not required to favor relative placement if, after
considering all the factors, it is in the child’s best interest for the agency to be
granted permanent custody. Schaefer at ¶ 64; accord In re T.G., 4th Dist. Athens
No. 15CA24, 2015-Ohio-5330, 2015 WL 9303036, ¶ 24; In re V.C., 8th Dist.
Cuyahoga No. 102903, 2015-Ohio-4991, 2015 WL 7777606, ¶ 61 (stating that
relative’s positive relationship with child and willingness to provide an appropriate
home did not trump child’s best interest).
{¶57} In the instant case, clear and convincing evidence supports the trial
court’s finding that M.M. needs a legally secure permanent placement that
cannot be achieved without granting the agency permanent custody of the child.
Appellant agrees that she cannot provide M.M. with a legally secure permanent
placement. Although appellant contends that P.L., the child’s older sibling, can
provide the child with a legally secure permanent placement, the trial court was
not obligated to favor this relative placement if granting the agency permanent
custody would serve the child’s best interest.
{¶58} Additionally, the trial court noted its concerns about placing M.M.
with P.L. The court expressed some doubt whether P.L. would be willing to keep Pike App. No. 20CA907 22
the child away from appellant, if appellant continued to abuse drugs. The
evidence also shows that P.L. lives near appellant and the GAL expressed
concern that M.M. would experience trauma if exposed to appellant. While P.L.
stated both she and appellant had discussed that the other could move to avoid
inadvertent contact between appellant and M.M., as of the date of the permanent
custody hearing, neither had taken any steps to move.
{¶59} We cannot fault the trial court for deciding not to experiment with
M.M.’s welfare by placing her in P.L.’s legal custody with the potential for
continued exposure to appellant. The trial court could have determined that the
possibility that M.M. would continue to be exposed to appellant if it granted P.L.
legal custody would be detrimental to the child’s growth, stability, and security.
{¶60} On the other hand, the evidence shows that M.M. is doing well in
her current foster home and is not at risk of being exposed to any negative
influences. The foster home provides M.M. with the stability and security that will
help nurture her continued growth. Moreover, the foster parent plans to adopt
M.M. if the court grants the agency permanent custody of the child.
{¶61} In the end, this case is yet another sad tale of a parent’s inability to
conquer her substance abuse addiction despite being a loving parent. The
evidence shows that appellant undoubtedly loves her child—so much so that she
recognizes her inability to care for the child at the present time. While preserving
the parent-child bond obviously is preferable and ordinarily in a child’s best
interest, circumstances may exist, as they do here, that counsel against Pike App. No. 20CA907 23
preserving the parent-child bond and in favor of safeguarding the child’s best
interest.
{¶62} Additionally, the facts in the case at bar gave the trial court reason
to suspect that granting legal custody of M.M. to P.L. would not serve the child’s
best interest over the long-term. The court noted its concerns that P.L. would not
take adequate steps to keep M.M. away from appellant. And the agency
caseworker, Dietzel, voiced her concern that P.L. would allow M.M. to visit
appellant or that allowing the child to live with P.L. would create potential for
M.M. to be exposed to appellant’s lifestyle of illegal substance abuse. Thus, after
considering the totality of the circumstances, we are unable to agree with
appellant that the trial court’s decision to place M.M. in the agency’s permanent
custody is against the manifest weight of the evidence.
{¶63} For these same reasons, we do not believe that the trial court’s
decision to deny appellant’s motion to place M.M. in P.L.’s legal custody is
against the manifest weight of the evidence.
CONCLUSION
{¶64} Having overruled appellant’s sole assignment of error, we affirm the
trial court’s judgment.
JUDGMENT AFFIRMED. Pike App. No. 20CA907 24
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Pike County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J., and Hess, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________ Kristy S. Wilkin, Judge
NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.