In re O.S.

2021 Ohio 3729

• Court: Ohio Court of Appeals
• Decided: October 19, 2021
• Docket: 21CA000018
• Status: Published

Opinion

[Cite as In re O.S., 2021-Ohio-3729.]

COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: IN THE MATTER OF: O.S. : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. : Hon. John W. Wise, J. : : : Case No. 21CA000018 : : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of Common Pleas, Juvenile Division, Case No. 2182137

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 19, 2021

APPEARANCES:

For - Appellant For - Appellee

JOHN DANKOVICH ASHLEY JOHNS 110 East High Street KNOX COUNTY JFS Mount Vernon, OH 43050 117 East High Street Mount Vernon, OH 43050 Knox County, Case No. 21CA000018 2

Gwin, P.J.

{¶1} Appellant appeals the May 11, 2021 judgment entry of the Knox County

Court of Common Pleas, Juvenile Division, terminating his parental rights and granting

permanent custody of O.S. to the Knox County Department of Job and Family Services

(“KCDJFS”).

Facts & Procedural History

{¶2} Appellant J.S. is the father (“Father”) of O.S., who was born on February

27, 2013. D.S. is the mother (“Mother”) of the child.

{¶3} On July 8, 2016, O.S. was placed into the temporary custody of KCDJFS

due to the drug-use and homelessness of Mother, and due to domestic violence between

Mother and her boyfriend. Father was not involved in O.S.’s life when she was removed

from Mother’s home. On August 9, 2016, the trial court found O.S. dependent, and

awarded temporary custody of O.S. to KCDJFS. The case progressed, but then reached

the two-year point. Because the case reached the two-year time limitation for temporary

custody imposed by R.C. 2151.415(D)(4), KCDJFS dismissed the case and refiled.

{¶4} On October 15, 2018, KCDJFS refiled a complaint for abuse, neglect,

and/or dependency with regards to O.S. The complaint alleged, in part: there were initial

reports of domestic violence between Mother and her boyfriend; Father has an extensive

history of lack of housing and stability; Father has significant mental health concerns and,

in the past, has deviated from regular treatment; Father has been hospitalized on

numerous occasions; Father struggled with maintaining employment; there are concerns

with Father’s living conditions; there is inconsistent access to working utilities (electric and

water) at Father’s house; and marijuana use of Father. Knox County, Case No. 21CA000018 3

{¶5} The trial court held a shelter care hearing on October 16, 2018. In a

judgment entry, the trial court found KCDJFS used reasonable efforts to prevent the

removal of the child from the home, to remedy the conditions that led to the removal of

the child, and to make it possible for the child to return home. Specifically, the reasonable

efforts were: facilitation of visitation and creation of a case plan.

{¶6} The trial court held an adjudicatory hearing on November 5, 2018. In a

judgment entry, the trial court found O.S. was a dependent child pursuant to R.C.

2151.04(C). Further, the trial court found KCDJFS used reasonable efforts to prevent the

removal of the child from the home, to remedy the conditions that led to the removal of

the child, and to make it possible for the child to return home. Specifically, the reasonable

efforts were: foster placement, assistance including KAT vouchers, referrals for parents,

and case plan efforts for over two years. The trial court granted continued temporary

custody of O.S. to KCDJFS.

{¶7} Upon the resignation of the previous GAL, the trial court appointed Mary

Lou Ranney (“Ranney”) as the guardian ad litem (“GAL”) of O.S. on January 3, 2019.

{¶8} The trial court held a dispositional hearing on December 10, 2018. In a

March 6, 2019 judgment entry, the trial court found it was in the best interest of O.S. to

be placed in the temporary custody of KCDJFS. Further, that KCDJFS made reasonable

efforts to work with the family to prevent the removal of the child from the home, to remedy

the conditions that led to the removal of the child from the home, to make it possible for

the child to return home, and to establish permanency for the child. The court specifically

found these reasonable efforts were: working with the family, and offering visitation to

both parents. Knox County, Case No. 21CA000018 4

{¶9} The trial court also adopted and approved the case plan. Pursuant to the

case plan, Father was required to: apply for public assistance; demonstrate he can

maintain safe and adequate housing for himself and O.S.; pay bills on time; cooperate

with service providers; submit to drug screens; sign releases of information for mental

health service providers, and follow their recommendations; not engage in criminal

behaviors; and attend mental health services.

{¶10} The trial court held review hearings on April 22, 2019, November 15, 2019,

March 28, 2020, and October 7, 2020. In judgment entries after each review hearing, the

trial court found KCDJFS made reasonable efforts to work with the family, to prevent the

removal of the child from the home, to remedy the conditions that led to the removal of

the child from the home, to make it possible for the child to return home, and to establish

permanency for the child. The court specifically found these reasonable efforts were:

visitation, case planning, and provision of services for the parents by KCDJFS.

{¶11} Father filed a motion for custody on April 18, 2019. The trial court denied

Father’s motion on January 24, 2020, citing concerns about Father’s mental health and

the condition of his home. Father filed a second motion to return custody on July 14,

2020.

{¶12} KCDJFS filed a motion for permanent custody of O.S. on October 15, 2020.

The motion outlined the issues remaining with Father, including significant home condition

concerns.

{¶13} The trial court held a trial on March 26, 2021 on all pending motions. At the

beginning of the trial, counsel for Father made an oral motion to appoint an attorney for

O.S. because Father believed O.S.’s wishes conflicted with the GAL’s recommendation. Knox County, Case No. 21CA000018 5

Both the trial court and the GAL confirmed that O.S.’s wishes are not to live with Father,

but to stay with the foster family. Thus, the trial court overruled Father’s motion because

O.S.’s wishes were consistent with the GAL’s recommendation.

{¶14} Counsel for Father then requested a planned permanent living arrangement

for O.S. so that she could remain in foster care and also visit with Father. However, the

trial court stated that, pursuant to R.C. 2151.415, the child must be sixteen years of age

or older to qualify for a planned permanent living arrangement.

{¶15} Father testified he has not lived with O.S. since she was less than one year

old. When the case first started, Father had housing issues. However, he does not have

those issues now, as he lives with his girlfriend, her adult sister, and her two children. If

Father obtains custody of O.S., she will share a bedroom with Father’s girlfriend’s

eighteen-year-old daughter. Father pays rent with SSI and SSD funds he receives.

Father stated he will be able to support O.S. because he is on social security and he will

also receive social security for O.S. once he receives custody of her.

{¶16} Father admits that when the case first started, he had mental health issues.

However, Father testified he now maintains all his mental health appointments. Father is

schizoaffective, and receives a medication injection every three months to maintain

mental stability. Father goes to therapy with O.S.

{¶17} Father described his visits with O.S. during her therapy sessions. Father

stated that any time he missed a visit, it was because he did not have transportation. At

the last visit between Father and O.S., O.S. told him she did not want to come live with

him. Father testified the agency told him he could not have visits at his home for several

months due to COVID. Knox County, Case No. 21CA000018 6

{¶18} According to Father, his criminal history consists only of misdemeanors,

including a drug possession charge. Father now has a medical marijuana card.

{¶19} Father requests the court grant him custody of O.S. Father owns a vehicle,

but does not have a license. Father has concerns about the number of dogs at the foster

home. He believes it is in the best interest of O.S. to live with him and believes he can

handle her medical issues and make sure she does well in school. He also believes O.S.

would have a better connection with him because he is a biological parent. Father does

not believe removing O.S. from the foster home will cause her any trauma.

{¶20} Father testified he has completed his case plan, as he has applied for public

assistance, maintained housing, cooperated with his service providers, submitted to drug

screens when asked, refrained from criminal behavior, and maintained mental health

services.

{¶21} On cross-examination, Father stated he was not able to attend O.S.’s

medical appointments because he did not have transportation, and no one prevented him

from attending them. Similarly, he never asked to attend a parent-teacher conference

and never asked to look at her grades. Father does not know why O.S. is in counseling.

{¶22} Robia Kaylor (“Kaylor”) has been O.S.’s therapist for approximately four

years. O.S.’s diagnosis is trauma-related and O.S. has issues with properly responding

to stressors. Kaylor stated O.S. has made tremendous progress over the years. In the

therapy with Father and O.S., there was initially very little interaction. Recently, there has

been a little more interaction. Kaylor testified there appears to be some bond between

them. Father did not show up for the last two visits with O.S. Father called approximately

40 minutes after the session time and asked if he had a visit. Knox County, Case No. 21CA000018 7

{¶23} Kaylor believes O.S.’s trauma came from the removal from Mother’s home

and previous domestic violence issues not related to Father. Kaylor stated O.S. is very

attached to her current foster home because she has been there since 2017. O.S. refers

to them as her family.

{¶24} Counsel for KCDJFS called Celeste Conner (“Conner”) as a witness.

Counsel for Father objected because Conner was not provided to him in a witness list

prior to the trial. When the court inquired if counsel for Father requested a witness list,

counsel for Father stated he did not know. However, counsel for Father agreed that

Conner has been O.S.’s foster parent for the past four years. The trial court overruled

Father’s objection to Conner’s testimony.

{¶25} Conner described O.S. as very bright, but quiet. O.S. likes routines.

Conner and her husband have three children, and currently have five foster placements

besides O.S. They have a seven-bedroom home. O.S. is very bonded to her and all of

her siblings. They recently discovered O.S. has frontal epileptic seizures. O.S. is on

medication for the seizures. Conner tracks smaller seizures as she was taught by the

neurologist. She tracks and reports them to the neurologist to determine whether the

medication is working. O.S. does not speak to people unless she has a bond with them.

{¶26} O.S. has an IEP in school for speech and processing. Conner facilitates

visitation with Mother, approximately once per month. Father contacts Conner

sporadically through Facebook messenger. Conner told Father he could call as much as

he wanted when COVID started; however, he only called once. When COVID started,

Father’s unsupervised home visitations stopped, but Father could still visit with O.S.

outside twice per month. Knox County, Case No. 21CA000018 8

{¶27} Conner confirmed that, even if she adopted O.S., she would permit Father

to visit. Due to Father’s transportation issues, Conner had to provide all transportation to

and from visits. When Father has missed a visit, O.S. does not seem upset. O.S. has

lately seemed upset because Father asks her if she wants to come live with him.

{¶28} Conner does not believe O.S. is bonded to Father because there does not

appear to be any conversation between them. O.S. does not act afraid of Father, but

seems intimidated by him.

{¶29} Chandal Pfleiderer (“Pfleiderer”) from KCDJFS has done home visits

recently after another social worker was promoted to supervisor. Pfleiderer met with

Father in January of 2021. It was an evening visit and Father did not speak much. Rather,

his girlfriend did all of the talking. The home was cluttered, with a small pathway through

the clutter. There was a used Depends diaper laying on the bathroom floor. Based upon

her criteria for placement, she would absolutely not place a child in Father’s home. The

home was extremely cluttered, there was nowhere to sit, and old pans with grease on

them were on the table.

{¶30} Pfleiderer attempted to make an unannounced visit in February of 2021, but

no one answered the door. She left a card, but no one returned her call.

{¶31} Pfleiderer visited with O.S. at the foster home several times recently. O.S.

would not talk to her at first because she is very shy. However, O.S. talks to foster mom

and her foster siblings. O.S. appears well-adapted in the home.

{¶32} Dawn Parks (“Parks”) was the original caseworker in the case beginning in

2016. O.S. went into the temporary custody of the agency on July 8, 2016, and has

remained in the agency’s temporary custody since that time. The original concerns in Knox County, Case No. 21CA000018 9

2016 were homelessness and domestic violence between Mother and her boyfriend. At

the beginning of the case, Father had no continuous contact with O.S. Mother has

numerous health issues, and admits she cannot care for O.S. Mother informed Parks

that she would like the agency to gain permanent custody of O.S., with continued

placement with the current foster family.

{¶33} Parks testified that, overall, Father has completed some case plan activities.

Initially, Father struggled to maintain housing and address his mental health needs. Early

on in the case, Father did not have stable housing and was moving often. Father has

maintained his current residence for approximately three years, and has obtained regular

mental health treatment. However, Parks still has concerns that Father cannot maintain

a clean home, lacks a good bond with O.S., and cannot provide care for O.S. on a regular

basis, especially in light of her special medical needs and the necessity to consistently

track her symptoms. In his current home, Parks has seen multiple issues, such as dirty

diapers on the floor from the girlfriend’s daughter who has a medical condition. There is

always clutter around the walkways that is especially concerning for a younger child.

{¶34} Father initially had visitation at KCDJFS and eventually progressed to visits

at his residence. KCDJFS or Conner provided transportation for the visits. Due to COVID

restrictions, the home visits temporarily stopped. Father then had outdoor visitation. In

the fall of 2020, Father’s visits resumed at O.S.’s therapist’s office.

{¶35} Parks has not seen recent visits between Father and O.S., but observed

them previously. At the visits she observed, Father and O.S. stood there and Parks had

to tell them to go start their visit. She did not observe much interaction between them. Knox County, Case No. 21CA000018 10

While O.S. will play games with Father during the visits, the dialogue between Father and

O.S. is very limited.

{¶36} Parks attempted to get Father to go to therapy with O.S. However, he did

not agree to this until October or November of 2020. The agency offered Father

assistance with transportation, such as KAT vouchers or the use of a family aide.

{¶37} Parks has seen O.S. interact with the foster family. O.S. is very comfortable

in the home and is bonded to the foster family.

{¶38} Parks believes that with O.S.’s increasing medical needs that can worsen

with stress, she needs a legally secure placement. Park testified the concerns that

existed at the beginning the case with regards to Father such as home conditions and

lack of bonding with O.S. are still ongoing. While Father has been permitted to call or text

O.S., he has not done so. Parks does not have any current concerns about Father’s

mental health.

{¶39} Ryan Riggs (“Riggs”) is a psychiatric mental health nurse practitioner.

Father is his client. Father is currently diagnosed with schizoaffective disorder bipolar

type, post-traumatic stress disorder, and cannabis dependence. Father is stable due to

psychiatric medication.

{¶40} S.H. is Father’s girlfriend. She lives with Father, her sister, and her two

daughters, who are 17 and 18. Father has helped her raise her children. S.H. does not

believe their house is dangerous. S.H. had a children’s services case against her with

regards to her children, but that case was closed in 2019. The case was substantiated

for medical negligence. Knox County, Case No. 21CA000018 11

{¶41} Susan Morris (“Morris”) is the paternal grandmother of S.H.’s children. She

has no concerns with Father or the home. Morris denied seeing any boxes in the home

or on the floor. J.W. is S.H.’s daughter. Father helped her, and she has no concerns

about Father. S.H.’s older daughter also testified that Father’s home is clean, with no

boxes or clutter on the floor.

{¶42} Mother testified that Father left their home when O.S. was six months old.

Father had no contact with O.S. from then until 2016, when KCDJFS became involved.

Father was not violent with Mother. Mother has concerns about O.S. going to live with

Father, including his inability to take care of her, especially with her seizures. Mother

stated Father can hardly take care of himself, and has no understanding of what O.S.

needs. Mother does not believe Father has the mental capability to take care of O.S.,

even when he is on his psychiatric medication. Mother believes is it in the best interest

of O.S. for KCDJFS to be granted permanent custody of O.S.

{¶43} The GAL testified there were no domestic violence concerns with Father.

O.S. has been very adamant and consistent that she does not want to live with Father

and feels safe where she is. The GAL thinks O.S.’s wishes are based upon the lack of

cleanliness of Father’s home, but also because O.S. is not comfortable around Father.

The GAL has observed visits between Father and O.S. and there is no bond between

them. O.S. is uncomfortable expressing herself around Father, but also does not want to

hurt his feelings, so is afraid to say anything to him. The GAL does have concerns about

the foster family allowing Father to visit O.S., but still believes O.S. deserves permanency.

However, the foster family has never limited Father’s contact so far in this case. Knox County, Case No. 21CA000018 12

{¶44} The GAL agrees that limited visits and contact with Father has been an

issue since COVID; however, she believes this has been an issue from the beginning of

the case, prior to COVID. In her opinion, it would take more counseling and substantial

contact between O.S. and Father for her to recommend Father receiving custody. If the

child was comfortable in the home and spent more time there, the GAL may have been

more inclined to consider recommending Father be granted custody. However, the GAL

does not think that, even now, O.S would be comfortable with overnight visits with Father.

{¶45} During Father and O.S.’s most recent visit, O.S. told Father she did not want

to live with him. After that, Father missed the next two visits. This concerned the GAL.

{¶46} The GAL testified O.S. is very bonded to the foster family and is comfortable

in their home. The GAL believes it would be very detrimental for O.S. to be removed from

the home at this point.

{¶47} The GAL believes it is in the best interest of O.S. for permanent custody to

be granted to KCDJFS. Even if O.S. was not placed with this particular foster family, the

GAL would still recommend permanent custody to the agency since the case has been

open for four years.

{¶48} The trial court also referenced and admitted the report of the GAL. In her

report, the GAL recommended that permanent custody of O.S. be granted to KCDJFS

and stated permanent custody to KCDJFS would be in the best interest of O.S. As to the

child’s wishes, the GAL stated that O.S. is an eight-year old child who has been in the

custody of the agency since she was approximately three years old. O.S. has expressed

consistently that she likes to visit Father, but is adamant that she does not want to live

with him. O.S. is afraid to hurt Father’s feelings, but is learning through counseling to Knox County, Case No. 21CA000018 13

advocate for herself. Mother agrees with KCDJFS having permanency custody, but filed

her own motion in case permanent custody was not granted to the agency.

{¶49} The GAL listed the following concerns in her report about returning the child

to her parents: O.S. is bonded to the foster family; O.S. has been in agency custody for

more than four years; Father does not have overnight parenting time; Father does not

have a driver’s license and relies on others outside of the home for transportation; removal

of O.S. from the foster home would require her to change schools, which would be

detrimental; history of homelessness; conditions of Father’s home; and long duration of

involvement with the agency with little progress.

{¶50} The trial judge completed an in-camera interview with O.S. O.S. told the

judge she would like to maintain some contact with Father, but did not want to live with

him. O.S. stated that one-time, Father did not feed her during a visit.

{¶51} The trial court issued a detailed judgment entry on May 11, 2021.

{¶52} As to Father’s request to appoint an attorney advocate for O.S., the court

stated it inquired of the GAL as to the wishes of O.S. as compared to the recommendation

of the GAL. The court found the recommendations align and do not conflict. Thus, the

trial court denied the motion to appoint attorney advocate.

{¶53} The trial court then went through the testimony in the case in detail. The

trial court also stated that the child’s wishes, as expressed to the court during an in-

camera interview, are in line with O.S.’s request of the GAL to maintain contact with her

parents, but not reside with them. O.S. told both the court and the GAL that Father

neglects her, and she is uncomfortable with the idea of living with him. Knox County, Case No. 21CA000018 14

{¶54} The trial court found O.S. has been in the temporary custody of KCDJFS

for more than twelve months of a consecutive twenty-two-month period. Further, that

O.S. cannot be placed with either parent within a reasonable amount of time. The trial

court stated the efforts made by KCDJFS were reasonable, appropriate, and consistent

with the child’s best interest. Additionally, KCDJFS used reasonable efforts to prevent

the removal of the child, to remedy to conditions that led to removal, and to make it

possible for the child to return home. Specifically, these reasonable efforts consisted of

case planning, referrals to services, and facilitation of visitation.

{¶55} The trial court stated it considered the best interest factors contained in R.C.

2151.414(D), and found it is in the child’s best interest to grant permanent custody to

KCDJFS.

{¶56} Father appeals the May 11, 2021 judgment entry of the Knox County Court

of Common Pleas, Juvenile Division, and assigns the following as error:

{¶57} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST

INTERESTS OF THE CHILD WOULD BE SERVED BY GRANTING PERMANENT

CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.

{¶58} “II. THE COURT ERRED IN ALLOWING THE MOTION TO PROCEED OR

GRANTING THE MOTION DUE TO LACK OF REASONABLE EFFORTS.

{¶59} “III. THE RIGHTS OF THE CHILD, PARENTS, AND FAMILY WERE

VIOLATED AS THEY WERE NOT GIVEN COUNSEL.

{¶60} “IV.THE COURT ABUSED ITS DISCRETION IN ALLOWING THE

TESTIMONY OF A WITNESS WHO WAS NOT PROPERLY DISCLOSED.” Knox County, Case No. 21CA000018 15

Permanent Custody

{¶61} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S.

645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must be

based on clear and convincing evidence. R.C. 2151.414(B)(1).

{¶62} Clear and convincing evidence is that evidence “which will provide in the

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

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “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.” Id. at 477. If some competent and credible evidence going

to all the essential elements of the case supports the trial court’s judgment, an appellate

court must affirm the judgment and not substitute its judgment for that of the trial court.

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶63} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is “crucial

in a child custody case, where there may be much evidence in the parties’ demeanor and

attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415,

674 N.E.2d 1159 (1997).

{¶64} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court Knox County, Case No. 21CA000018 16

schedule a hearing and provide notice upon filing of a motion for permanent custody of a

child by a public children services agency.

{¶65} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply: (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; or (d) the child has been in the temporary custody of one or

more public children services agencies or private child placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶66} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, a trial court

will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.

I.

{¶67} In his first assignment of error, Father makes two separate arguments.

First, he contends the elements of R.C. 2151.414(B)(1)(a) and (E) were not met because

the finding that O.S. could not or should not be placed with Father within a reasonable

time was not proven by clear and convincing evidence. Knox County, Case No. 21CA000018 17

{¶68} We first note that the trial court determined, pursuant to R.C.

2151.414(B)(1)(d), the child has been in the temporary custody of the agency for a period

of time in excess of twelve of the prior twenty-two consecutive months. Parks testified

O.S. was placed into the temporary custody of KCDJFS on July 8, 2016, and was

continuously in the temporary custody of KCDJFS until March 26, 2021, the date of the

trial. Thus, O.S. has been in the custody of the agency for more than twelve months out

of the last twenty-two months.

{¶69} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are

alternative findings, each is independently sufficient to use as a basis to grant the motion

for permanent custody. In re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-

Ohio-5805. This finding alone, in conjunction with a best interest finding, is sufficient to

support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118,

2008-Ohio-5458.

{¶70} Because Father has not challenged the twelve of twenty-two-month finding,

we would not need to address the merits of Father’s claim with regards to the trial court’s

determination that O.S. could not or should not be placed with Father within a reasonable

time. However, even if we consider Father’s argument, the trial court did not commit error

in determining the child cannot be placed with Father at this time or within a reasonable

period of time. Under R.C. 2151.414(E), the trial court must consider all relevant evidence

before making this determination. The trial court is required to enter such a finding if it

determines, by clear and convincing evidence, that one or more of the factors enumerated

in R.C. 2151.414(E)(1) through (16) exist with respect to each of the child’s parents. Knox County, Case No. 21CA000018 18

{¶71} A review of the record supports the trial court’s conclusion that the child

cannot be placed with Father within a reasonable time. When Pfleiderer visited Father’s

home in January of 2021, the conditions were poor, with nowhere to sit and dirty diapers

on the floor. Pfleiderer would not consider placing O.S. in Father’s home due to the home

conditions. Father failed to respond to Pfleiderer’s request to call to schedule a home

visit in February of 2021.

{¶72} Parks explained concerns remain that were present at the beginning of the

case. For example, Father still cannot maintain a clean home, he lacks a bond with O.S.,

and he cannot provide care for O.S. on a regular basis, especially in light of her medical

condition. The GAL also believes Father’s home condition and lack of bonding with O.S.

are concerns that still remain. She would not recommend overnight visitation with Father

even after four years of agency involvement. The GAL stated there has been a long

duration of agency involvement with O.S. with little progress by Father.

{¶73} Despite KCDJFS informing Father about their concern with the lack of

bonding between him and O.S., for a month prior to the trial in this case, Father did not

attend visitation. This lack of contact began immediately after a visitation during which

O.S. told Father she did not want to live with him.

{¶74} Father’s lack of knowledge about O.S., even after four years of agency

involvement, is evident in his testimony. He could not identify what size clothing O.S.

wears, has not asked to attend to any medical or educational appointments, and is

unaware of why O.S. is in counseling even though he attended several sessions with her. Knox County, Case No. 21CA000018 19

{¶75} Though Father contends O.S. could have been placed with him “in a few

months” without visitation being disrupted by COVID visitation restrictions, the evidence

at trial does not support his contention.

{¶76} Despite the fact that Father was limited for several months in his face-to-

face visits with O.S., he was offered unlimited phone and virtual contact with O.S.

However, he only called once during this time. Additionally, face-to-face visits started

outdoors, where Father could have contact with O.S. several times per month. During

these visits, Parks observed that there was little interaction between Father and O.S.

{¶77} The GAL explained that while the few months of COVID visitation

restrictions may have impacted Father, the greater impact on the lack of bond between

Father and O.S. is the lengthy period of time he did not have contact with O.S. from when

she was six months old to the beginning of the case in 2016, and his sometimes-

inconsistent visitation since 2016. Further, the GAL noticed a lack of bonding and

interaction between O.S. and Father during visits prior to and after the COVID restrictions.

Parks described how she repeatedly asked Father to be involved in therapy with O.S.

during the pendency of the case. However, he chose not to participate until October or

November of 2020, after O.S. had been in agency custody for over 50 months.

{¶78} As recently as a month before the trial in this case, Father twice failed to

appear for visitation with O.S. after she told him she did not want to live with him. Parks,

Pfleiderer, and the GAL all testified to concerns remaining with Father at the time of trial.

There is no evidence these issues could be resolved in “a few months,” particularly given

the fact that they could not be resolved in the years prior to or the months after the COVID

visit limitations. Knox County, Case No. 21CA000018 20

{¶79} Father argues KCDJFS did not make “reasonable case planning and

diligent” efforts to assist Father in remedying the problems existing at beginning of the

case. Father has also assigned this as a separate assignment of error. As detailed in

our analysis of Father’s second assignment of error, we find this argument to be not well-

taken.

{¶80} Additionally, Father argues the trial court’s determination that the best

interest of the child would be served by the granting of permanent custody to KCDJFS

was against the manifest weight and sufficiency of the evidence. Father cites to the

testimony that O.S. wished to maintain contact with Father, the fact that he completed his

case plan, and his testimony that due to his bond with O.S., it is in the best interest of

O.S. to stay with her biological family.

{¶81} We have frequently noted, “[t]he discretion which the juvenile court enjoys

in determining whether an order of permanent custody is in the best interest of the child

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

that court’s determination will have on the lives of the parties concerned.” In re Mauzy

Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1799973 (Nov. 13, 2000), citing In

re Awkal, 85 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).

{¶82} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to the following: (1) the interaction and interrelationship of the child 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 wishes of the child as

expressed directly by the child or through the child’s guardian ad litem, with due regard Knox County, Case No. 21CA000018 21

for the maturity of the child; (3) the custodial history of the child; (4) the child’s need for a

legally secure placement and whether that type of placement can be achieved without a

grant of permanent custody; and (5) whether any of the factors in divisions (E)(7) to (11)

of this section apply in relation to the parents and child.

{¶83} The court must consider all of the elements in R.C. 2151.414(D) as well as

other relevant factors. There is not one element that is given greater weight than the

others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513, 857

N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when

determining whether it is in the best interest of a child to grant permanent custody to an

agency, does not include finding by clear and convincing evidence that no suitable relative

was available for placement. Id. R.C. 2151.414 “requires the court to find the best option

for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)

through (d). 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.

{¶84} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re Awkal, 85 Ohio App.3d

309, 642 N.E.2d 424 (8th Dist. 1994).

{¶85} We find the trial court did not commit error in finding that granting permanent

custody to KCDJFS was in the best interest of O.S.

{¶86} Mother testified Father is not capable of taking care of O.S. because he can

“hardly take care of himself.” Mother does not believe Father has any understanding of Knox County, Case No. 21CA000018 22

what O.S. needs. Mother believes it is in the best interest of O.S. for KCDJFS to be

granted permanent custody of O.S.

{¶87} The GAL stated it is in the best interest of O.S. for permanent custody to be

granted to KCDJFS. Even if O.S. was not with this particular foster family, the GAL

believes it still would be in O.S.’s best interest for KCDJFS to be granted permanent

custody. The GAL stated O.S. deserves permanency and stability, particularly with her

recently diagnosed seizure condition.

{¶88} O.S.’s therapist testified O.S. is very attached to the foster home because

she has been there since 2017, and refers to them as her family. Conner stated O.S. is

very bonded with their family. Pfleiderer stated O.S. is well-adapted in the foster home.

According to the GAL, O.S. is very bonded to the foster family, and it would be very

detrimental to remove her from their home.

{¶89} While O.S. does not want to hurt Father’s feelings and expressed a desire

to maintain contact with him, O.S. was adamant to both the GAL and the trial court that

she does not want to live with Father. She does not feel comfortable in his home. O.S.

was not upset when Father recently missed his visitation with her. The GAL and Parks

do not believe O.S. has any bond with Father. This lack of bonding is particularly

concerning because O.S. is hesitant to express her needs and has medical conditions

that require close monitoring.

{¶90} Father contends he has completed all his case plan requirements.

However, the successful completion of a case plan is not dispositive on the issue of

reunification. In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604. While it may

be in Father’s best interest to complete the case plan, this is only one factor for a trial Knox County, Case No. 21CA000018 23

court to consider what is in the best interest of the child. In the Matter of D.P. and G.P.,

5th Dist. Stark No. 2010CA00348, 2011-Ohio-1907.

{¶91} Where a parent has participated in his or her case plan and completed most

or all of the plan requirements, a trial court may still properly determine that such parent

has not substantially remedied the problems leading to agency involvement. In the Matter

of A.L. and J.L., 5th Dist. Guernsey No. 11 CA 23, 2012-Ohio-481. In this case, while

Father has substantially completed his case plan, Parks, Pfleiderer, and the GAL

described how Father failed to alleviate the risks present at the time of removal and that

the same concerns present at the beginning of the case still continue today.

{¶92} We find the trial court properly considered and weighed the factors in R.C.

2151.414(D) and the trial court’s conclusion that the granting of permanent custody to

KCDJFS is in the best interest of the child is supported by competent and credible

{¶93} Father’s first assignment of error is overruled.

II.

{¶94} In his second assignment of error, Father argues KCDJFS did not make

reasonable efforts to assist Father in remedying the problems leading to the removal of

O.S.; thus, the motion for permanent custody should be denied as not ripe.

{¶95} First, the Ohio Supreme Court has held the trial court is not obligated by

R.C. 2151.419 to make a determination that the agency used reasonable efforts to reunify

the family at the time of the permanent custody hearing unless the agency has not

established that reasonable efforts have been made prior to that hearing. In re C.F., 113

Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816; see also R.C. 2151.419. The trial court Knox County, Case No. 21CA000018 24

is only obligated to make a determination that the agency has made reasonable efforts to

reunify the family at “adjudicatory, emergency, detention, and temporary-disposition

hearings, and dispositional hearings for abused, neglected, or dependent children, all of

which occur prior to a decision transferring permanent custody to the state.” In re C.F.,

113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816; In the Matter of L.J., 5th Dist.

Licking No. 2019 CA 0079, 2019-Ohio-5231. In this case, the record reflects that the

juvenile court made reasonable-efforts findings at various points throughout the case for

the child, as demonstrated in judgment entries after the adjudicatory, dispositional, and

review hearings held on October 10, 2018, November 5, 2018, April 22, 2019, November

15, 2019, March 28, 2020, and October 7, 2020. Consequently, the agency did not need

to prove at the permanent custody hearing that it made reasonable reunification efforts.

Id.

{¶96} In its March 26, 2021 judgment entry, the trial court found KCDJFS made

reasonable efforts to reunify the family.

{¶97} Father contends the efforts of KCDJFS were not reasonable because they

made no effort to include him in medical planning, counseling for O.S., or school, despite

his requests. Further, that KCDJFS failed to use reasonable efforts to help with the

bonding issues between O.S. and Father. Specifically, Father alleges KCDJFS did not

expend reasonable efforts because they suspended his face-to-face visitation for a period

of time during the height of the COVID pandemic.

{¶98} We find there is competent and credible evidence to confirm that KCDJFS

made reasonable efforts to assist Father in eliminating the need for the continued removal

of the child. Knox County, Case No. 21CA000018 25

{¶99} Parks testified regarding efforts made by the agency during their 56-month

involvement with the family, including case management services, foster placement,

counseling for O.S., coordination between O.S.’s counselor and Father, and visitation

between O.S. and Father. Conner and/or KCDJFS provided all transportation to and from

visits because Father does not have a driver’s license. KCDJFS also provided Father

with KAT transportation vouchers and the use of a family aide from KCDJFS. The month

prior to trial, Pfleiderer attempted to visit Father’s home, but he was not there and never

returned her call despite her leaving her card asking him to do so.

{¶100} With regard to COVID-visitation restrictions, during the months that there

was no face-to-face contact, the agency permitted Father to call, text, or virtually contact

O.S. as much as he wanted. During this time, he only called O.S. once. Additionally,

within a few months, KCDJFS approved resumption of face-to-face outdoor visits several

times per month. However, during these visits, O.S. and Father had very little interaction.

Though Father did start attending counseling sessions with O.S. in the fall of 2020, he

missed the two visits prior to the March 2021 trial.

{¶101} Though Father argues KCDJFS failed to inform him about medical

appointments or school records for O.S., Parks testified he never requested this

information. Father himself testified that he never asked to attend a parent-teacher

conference or to look at O.S.’s grades. Father stated no one prevented him from

attending O.S.’s medical appointments, and he was not able to attend them because he

did not have transportation. Additionally, Parks, the GAL, and Pfleiderer all testified to

the efforts they went through to attempt to assist in bonding Father with O.S. Knox County, Case No. 21CA000018 26

{¶102} The issue is not whether there was anything more the agency could have

done, but whether the agency’s case planning and efforts were reasonable and diligent

under the circumstances of the case. In the Matter of J.H., 5th Dist. Guernsey No.

19CA000025, 2019-Ohio-5184. We find there is competent and credible evidence to

support the trial court’s determination that KCDJFS’ efforts were reasonable and diligent

under the circumstances of the case.

{¶103} Father’s second assignment of error is overruled.

III.

{¶104} In his third assignment of error, Father contends the trial court committed

error when it failed to appoint O.S. an attorney advocate separate from the GAL because

a conflict existed between O.S.’s wishes and the recommendation of the GAL.

{¶105} Superintendence Rule 48.02(D)(1) provides that, in abuse, neglect, and

dependency cases, “a court shall appoint a separate attorney to represent a child * * * [in]

cases in which the wishes of the child differ from the recommendations of the guardian

ad litem.” Similarly, Juvenile Rule 4(C) states that, “if a person is serving as guardian ad

litem for a child * * * and the court finds a conflict exists between the role of the Guardian

ad litem and the interest or wishes of the child * * *, the court shall appoint counsel for the

child * * *.”

{¶106} The Ohio Supreme Court has held that a trial court should determine, on a

case-by-case basis, whether the child actually needs independent counsel, “taking into

account the maturity of the child and the possibility of the [GAL] being appointed to

represent the child.” In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d

1110. Ohio courts have concluded “the appointment of independent counsel is warranted Knox County, Case No. 21CA000018 27

when a child has ‘repeatedly expressed a desire’ to remain or be reunited with a parent

but the child’s [GAL] believes it is in the child’s best interest that permanent custody be

granted to the state.” In re Hilyard, 4th Dist. Vinton Nos. 05CA600 through 05CA609,

2006-Ohio-1965.

{¶107} We find the record does not reveal any conflict giving rise to any need for

new, separate counsel. The GAL stated that O.S. was consistently “adamant” that she

did not want to live with Father. The trial court confirmed this was the case during an in-

camera interview with O.S. Additionally, Father confirmed in his testimony that O.S. told

him she did not want to live with him.

{¶108} In this case, unlike the cases cited by Father, the record does not reflect

that O.S. consistently and repeatedly expressed a strong desire to live with Father in his

home. Accordingly, we find the trial court did not commit error in failing to appoint

independent counsel for O.S. on the date of the hearing.

IV.

{¶109} In his final assignment of error, Father argues the trial court committed error

in allowing the testimony of Conner, the foster mother of O.S., because she was not

properly disclosed as a witness prior to trial.

{¶110} First, we find Father has failed to demonstrate that Conner was not properly

disclosed as a witness. Father cites Juvenile Rule 24(A) in support of his argument. The

rule provides, “upon written request, each party of whom discovery is requested shall, to

the extent not privileged, produce promptly * * * (1) the names and last known addresses

of each witness to the occurrence that forms the basis of the charge or defense.” Counsel

for Father could not remember at the hearing whether he made a written request for Knox County, Case No. 21CA000018 28

discovery and/or a witness list. Upon our review of the record, we find no written

discovery request made by Father. Accordingly, Father did not properly make a “written

request” as required by Juvenile Rule 24(A). Additionally, both Father and his counsel

agreed that Conner has been the foster mother for O.S. for four years.

{¶111} A trial court has the discretion to determine what sanction should be

imposed for a discovery violation, and a reviewing court may reverse only on a finding of

an abuse of discretion. Nakoff v. Fairview General Hosp., 75 Ohio St.3d 254, 662 N.E.2d

1 (1996). The trial court may exclude the testimony of an undisclosed witness as a

sanction when the failure to disclose caused unfair surprise with prejudice to the opposing

party. Anderson v. Lorain County Title Co., 88 Ohio App.3d 367, 623 N.E.2d 1318 (9th

Dist. Lorain 1996).

{¶112} Father fails to demonstrate any unfair surprise in this case. Father was

aware of Conner’s involvement in the case for the past four years. He contacted Conner

directly to confirm visitation times. He had ample opportunity to interview her if he wanted.

{¶113} Additionally, Father does not allege or demonstrate on appeal how Conner’s

testimony was prejudicial to him. The information she testified to, such as medical issues

and visitation issues, were disclosed and discussed with Father during annual review

hearings. Conner’s testimony was corroborated by others, including Father himself.

State v. Ruddock, 5th Dist. Licking No. 11-CA-94, 2012-Ohio-2711; State v. Larkins, 5th

Dist. Richland No. 2007-CA-0082, 2008-Ohio-5982.

{¶114} Father’s fourth assignment of error is overruled.

{¶115} Based on the foregoing, Father’s assignments of error are overruled. Knox County, Case No. 21CA000018 29

{¶116} The May 11, 2021 judgment entry of the Knox County Court of Common

Pleas, Juvenile Division, is affirmed.

By: Gwin, P.J.,

Hoffman, J., and

Wise, John, J., concur