[Cite as In re P.J.M., 2025-Ohio-2124.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF : JUDGES: : Hon. Craig R. Baldwin, P.J. P.J.M. (DOB 7/15/21) : Hon. William B. Hoffman, J. D.M. (DOB 1/03/23) : Hon. David M. Gormley, J. : : : Case Nos. 2024CA0027 : 2024CA0028 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case Nos. 20233004 and 20233005
JUDGMENT: Affirmed
DATE OF JUDGMENT: June 16, 2025
APPEARANCES:
For Plaintiff-Appellant Mother For Defendant-Appellee Guardian ad Litem DIANA E. DUDGEON Dudgeon & Nabors Law Group JEANETTE MOLL 141 Front Avenue SE 45 North 4th Street New Philadelphia, Ohio 44663 Zanesville, Ohio 43701
For Father For Coshocton County JFS
RICHARD D. HIXSON KATELYNN DAVID 3808 James Court, Suite 2 300 North 3rd Street, Suite A Zanesville, Ohio 43701 Coshocton, Ohio 43812 Baldwin, P.J.
{¶1} The appellant, T.M., appeals trial court’s decision to terminate her parental
rights and grant permanent custody of P.J.M. and D.M. to Coshocton County Job and
Family Services (“the Agency”). The appellee is the children’s guardian ad litem.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On July 15, 2021, P.J.M. was born. On January 3, 2023, D.M. was born.
The appellant is the biological mother of P.J.M. and D.M. (“the children”). N.M. is the
biological father of the children.
{¶3} On or about January 20, 2023, the Agency filed complaints alleging that the
children were dependent under R.C. 2151.04 and neglected under R.C. 2151.03.
{¶4} On February 13, 2023, the trial court issued a Pre-Dispositional Interim
Order, placing the children in the temporary custody of the paternal grandparents with the
Agency’s protective supervision.
{¶5} On March 24, 2023, the appellant and N.M. entered admissions to
dependency of the children under R.C. 2151.04(C).
{¶6} On May 10, 2023, the Agency removed the children from the grandparents’
temporary custody.
{¶7} On May 11, 2023, the trial court held a shelter care hearing where they
granted the Agency temporary custody of the children. They were placed in a foster home.
{¶8} On January 10, 2024, upon the Agency’s motion, the trial court extended
the Agency’s temporary custody for six months.
{¶9} On January 22, 2024, the appellant gave birth to twins. The Agency filed
neglect and dependency claims on them as well. {¶10} On May 16, 2024, the appellee filed a motion for permanent custody of the
children.
{¶11} On May 23, 2024, the Agency filed a notice with the trial court stating that it
did not object to the appellee’s motion for permanent custody.
{¶12} On August 12, 2024, the trial court held a hearing on the appellee’s motion
for permanent custody.
{¶13} First, B.Y. testified that she is the foster mother of D.M. and P.J.M. P.J.M.
is three years old and has been living with her since May of 2023. P.J.M. is outgoing and
very intelligent. She is hitting all her milestones and has good motor skills. She enjoys
spending time with her foster family and extended foster family. She has formed a strong
bond with her foster family.
{¶14} D.M. has also lived with B.Y. since May of 2023. He is one and a half years
old. He was diagnosed with infantile nystagmus, an imbalance between the brain and the
eyes. It affects his motor skills and how well he will see. He had one surgery in April of
2024. He is healing well from the surgery, but doctors are recommending a second
surgery.
{¶15} D.M. was born eight weeks prematurely. He was born at home and taken
to the hospital due to breathing issues. D.M. was also born going through withdrawal from
drug exposure. D.M. has significant medical needs and must attend many medical, vision,
and physical therapy appointments.
{¶16} D.M. has bonded and is attached to his foster family.
{¶17} The foster parents are both licensed to adopt, and they intend to adopt the
children if the trial court grants the motion for permanent custody. They are willing to continue the medical treatments and appointments and are prepared to provide for all
their future needs.
{¶18} In the summer of 2024, N.M. suggested to the foster parents that they meet
at the Coshocton Balloon Festival “outside of the case.” The foster parents denied his
request and reported the incident to the Agency. The incident occurred after the appellee
had filed the motion for permanent custody. T.M. was not involved in the incident.
{¶19} Elizabeth Ballantine testified she has worked at the Agency for four and a
half years. Ms. Ballantine testified that the Agency filed a complaint regarding the
children’s older half-sibling, J.B. The children’s mother was living with J.B., and there were
concerns of domestic violence between the mother and father. In an incident between
J.B. and T.M., J.B. received a black eye. There were other reports of T.M. physically
assaulting J.B. J.B. had two siblings who also suffered medical and educational neglect
from T.M., their mother. They were not attending school, and there were housing and
substance use issues with the parents. The appellant refused the Agency access to the
home for seventy days. One of the children missed an entire year of school during that
time.
{¶20} The appellant was also the mother of the children’s other half-sibling, J.M.
The Agency became involved with J.M.’s case because of her previous history with J.B.
and his two siblings and prenatal drug use. J.M. was born drug-dependent. The Agency
removed J.M. from the appellant’s custody, and the trial court granted permanent custody
to the Agency. The appellant did not participate meaningfully in J.M.’s case plan and
tested positive for methamphetamines in February of 2022. {¶21} The children also have a half-sibling A.A. The trial court granted Legal
custody of A.A. to A.A.’s father. His testimony showed that the appellant made threats
toward A.A. and the child’s father. The appellant tried to poison A.A. and the child’s father
with mineral oil, and the appellant physically assaulted A.A.’s father.
{¶22} Ms. Ballantine testified that the appellant has nine minor children, none of
whom were under her care at the time of the hearing.
{¶23} Next, Lexi Thompson testified she is a case worker for the Agency.
{¶24} On December 12, 2022, she was on call and received a report that there
was a domestic violence incident between the appellant and N.M. At the time, four minor
children, including P.J.M., would have resided with them. P.J.M. was home at the time,
and the older three siblings were sent to their grandparents for the evening. Ms.
Thompson attempted to do a home visit to check on the children but was unable to make
contact. After she had left the residence, N.M. called her and told her that P.J.M. was not
the same in the home with the appellant. He failed to provide any explanation for this. He
said after officers left the home, the appellant began to yell and scream. N.M. wanted to
file for emergency custody of P.J.M.
{¶25} In May of 2023, one of the appellant’s children reported domestic violence
between their grandparents. The child was fearful of the home. The grandfather had been
reported walking around the house naked, not wearing any clothes. The Agency removed
the children’s siblings from their grandparents’ home. At the removal, the grandmother
admitted there were concerns about domestic violence and that she was scared of the
grandfather. Both P.J.M. and D.M. were removed from the grandparents’ home. {¶26} Next, Aleisha Youngen testified that she is employed as an intake
caseworker at the Agency. On December 13, 2022, she went to the home to meet with
N.M. and the appellant regarding the allegations of the previous evening. N.M. stated that
he had argued with the appellant. He left the home, and when he returned, the argument
resumed. During Ms. Youngen’s visit, the appellant hid in P.J.M.’s bedroom. When Ms.
Youngen and the officers went to P.J.M.’s room, P.J.M. was alone in her crib. They found
the appellant in the basement. The appellant refused to speak with Ms. Youngen because
appellant was pregnant and was scared of high blood pressure. The appellant refused to
take a drug screen.
{¶27} Ms. Youngen stated in her complaint that N.M. was crying, saying he could
not continue with the appellant yelling and belittling him constantly. The appellant had told
N.M. he could not take P.J.M. with him. Ms. Youngen then spoke with P.J.M.’s older
siblings. They reported that there was constant arguing and fighting between T.M. and
N.M. The appellant had threatened to stab all three of the older siblings. The appellant
had attempted to push N.M. down the stairs. The appellant would call her children “lazy”
and “bitches” while they were helping clean the home. They further told Ms. Youngen that
the appellant would scream when the fighting started, and N.M. would pick up P.J.M. so
that the appellant would not hit him. N.M. would use P.J.M. as a shield against the
appellant’s domestic violence. P.J.M. was one at the time. The fights between the
appellant and N.M. would result in holes being punched and kicked in the wall.
{¶28} On December 27, 2022, Ms. Youngen returned to the home to go over the
allegations with the appellant. The appellant and N.M. refused to take a drug screen that day. The appellant appeared to be under the influence of drugs or alcohol when they met
that day.
{¶29} On January 4, 2023, the Agency received a report that D.M. was born and
transported to the hospital by an ambulance. He was born early and was suspected of
having seizures and respiratory distress. The appellant had tested positive for
methamphetamines on January 2, 2023. D.M. tested positive for amphetamines and
methamphetamines. The hospital treated D.M. for withdrawal.
{¶30} On January 6, 2023, Ms. Youngen and Ms. Ballentine met with N.M. and
the appellant to do an out-of-home safety plan for all of the children. The appellant was
tested for drugs that day and tested positive for amphetamines and methamphetamines.
The Agency filed a complaint regarding D.M. on January 20, 2023. The children were
placed with the paternal grandparents.
{¶31} Next, Deputy Havranek testified he works for the Coshocton County
Sheriff’s Office as a deputy sheriff. On October 18, 2022, he was called to the home of
N.M. and the appellant. N.M. was outside waiting for him to arrive. He requested that the
deputy take the appellant into custody on a warrant. The appellant and N.M. had an
altercation at some point, and she began jabbing at her stomach with a brush and items
of that nature. She was pregnant with D.M. at the time, and P.J.M. was in the house. N.M.
also indicated that incidents of domestic violence occurred prior to that date. The
appellant came at him with a knife while he was holding P.J.M. She threatened to stab
N.M. in his sleep. During an argument, the appellant attempted to hit N.M. with a glass
plate. The appellant punched a television, causing it to shatter. The appellant threatened
to stab him and the kids, and she shattered another television with a sweeper. {¶32} The appellant then accused N.M. of throwing a playpen at her while she
was eating mozzarella sticks. N.M. caused her to bruise and bleed (N.M. claims he only
does that to stop her from attacking him and the kids). One of the daughters in the house
said they saw the appellant threaten N.M. with a knife. No charges were filed by either
the appellant or N.M. on that evening.
{¶33} Next, L.M., N.M.’s sister-in-law, testified that she had concerns about all the
children in N.M. and the appellant’s home. There was a concern about a lack of care for
the children, domestic violence in the home, and bed bugs in the home. L.M. observed
the bites from the bed bugs on all the children in the house. P.J.M.’s siblings told L.M.
that they were forced to stay in their bedrooms and not be allowed to be part of the family
in the living room. The appellant repeatedly threatened to cut their hair at night or stab
them. They were afraid to go to sleep at night because of the bed bugs. They said that
the appellant would hit N.M., and N.M. would push the appellant. L.M. received
photographs of the abuse N.M. inflicted on the appellant. The appellant had previously
attempted to assault L.M., which turned into the appellant assaulting N.M. when N.M.
prevented the attack.
{¶34} The Agency placed P.J.M.’s older siblings in the care of L.M. from May of
2023 to September of 2023. L.M. and her husband scheduled a meeting with N.M. to
check on his progress toward reunification and discuss his efforts to cover his children’s
expenses. N.M. failed to show. N.M.’s parents said he went to meet someone at a park.
N.M. became distraught when L.M. arrived at the park. He said he was going to kill the
Agency’s caseworker and sped away in his vehicle. {¶35} L.M. would have conversations with the older children. They would ask
when N.M. would love them enough to leave the appellant. They said they feared for their
lives with the appellant, and N.M. was mean to them when the appellant was present.
{¶36} Katie Barnett testified she is an ongoing caseworker with the Agency. She
was assigned to this case on February 14, 2023. On her first visit with P.J.M. and her
siblings, she was informed of the bed bugs in the home and their exposure to domestic
violence.
{¶37} The Agency developed a case plan on March 21, 2023, for the children and
their siblings. N.M. and T.M.’s case plan involved completing mental health services at
CBHC, drug and alcohol services, completing an assessment, and following all
recommendations. T.M. and N.M. must submit to announced and unannounced random
drug screens, must attend domestic violence classes, attend individual and couples
counseling, eliminate the bed bugs from their home, obtain and maintain employment to
provide the basic needs of themselves and their children, attend supervised visits with
the children, and attend medical appointments.
{¶38} N.M. attends CBHC but has not been consistent with the services going
forward. He has backslid on his sobriety as he consumed alcohol recently, and he has
attended domestic violence classes. There have been no reports of domestic abuse, but
the children are not in the home. The Agency is aware of a domestic violence incident
between N.M. and the appellant while on a video call with the children. He was removed
from Child Parent Interaction Therapy due to his missed appointments. He restarted at
some point, but Ms. Barnett does not know if he has been attending. They have left the
house with the bed bugs, but their new residence has a leaking roof. Water damage is still evident in the upstairs bedrooms. This will create mold. Eight months later, this
remained unresolved.
{¶39} N.M.’s parenting visits have gone well. But the issue of domestic violence
has been noted as a possibility still between N.M. and the appellant. The appellant is still
very angry; she is very controlling in the relationship. She is argumentative in her parent
coaching classes.
{¶40} N.M. attempted to see his children at a festival without a caseworker
present. N.M. reached out to B.Y. Because of this, N.M. and the appellant are not allowed
contact with the foster parents when they drop the children off for visitation.
{¶41} The appellant has attended CBHC but has not made significant progress.
She took limited advantage of the services offered and recommended. She is not
following through on recommendations for mental health and drug and alcohol
counseling. Her attendance is limited and sporadic. The appellant stated that she would
seek treatment elsewhere but has not provided any specifics to Ms. Barnett. The
appellant has not engaged in parenting and domestic violence classes.
{¶42} When Ms. Barnett performs home visits, N.M. and the appellant are
frequently sleeping through the day, and they often do not wake up. Ms. Barnett believes
that It is not a suitable environment for a one-year-old and a three-year-old. The children’s
older siblings have had their medical needs neglected. They need dental care and eye
appointments. These have been taken care of by their foster family. They did not have
such care before being placed with their foster family. While N.M. and the appellant work
the second and third shifts, someone needs to be available to meet the children’s needs. {¶43} Drug use is still a concern. D.M. was positive for methamphetamines at
birth. His younger twin siblings were also exposed to prenatal methamphetamine use by
the appellant. The appellant has not had any positive drug screens since June of 2023.
{¶44} The appellant’s threat to stab the children’s older siblings and “slit their
throats” remains a concern for the Agency. A civil protection order was issued against the
appellant to protect one of the children’s older siblings. P.J.M., D.M., and their younger
twin siblings cannot protect themselves if placed with the appellant and/or N.M. They are
at significant risk of harm due to threats and ongoing domestic violence.
{¶45} The Agency originally placed the children with their paternal grandparents.
The grandparents always had P.J.M. contained in a pack-and-play during Ms. Barnett’s
visits. Ms. Barnett was concerned about the cleanliness of their home, that the older
siblings had to parent P.J.M., and that D.M.’s needs were not being met. Domestic
violence was occurring between the grandparents, and the grandfather was often seen
naked in the home, sometimes just in his underwear. There were allegations he would lie
in bed with the older girls and watch pornography. The children were then placed with
B.Y. and her husband.
{¶46} As of May of 2023, the parents did not have visitation with the children as
they would not meet with Ms. Barnett regarding their case. They were not working on the
case plan or communicating with her.
{¶47} On June 5, 2023, the appellant was incarcerated for failure to pay child
support. She went to treatment in lieu of prison. She was in treatment until December 1,
2023. In June, the appellant tested positive for methamphetamines and amphetamines.
She was pregnant with twins. {¶48} N.M. began engaging with Ms. Barnett during the appellant’s incarceration.
He had to stop his visitations multiple times due to positive drug screens.
{¶49} The appellant and N.M. resumed visitation with the children. They were
staying at the appellant’s father’s home. He was suffering from an illness. While at his
home, N.M. was reportedly looking through his cabinets. The appellant’s father’s pain
medication disappeared, and N.M. tested positive for morphine on September 6, 2023.
N.M. tested positive for THC on September 14, 2023. During the course of the case, the
children’s older siblings requested that they not have contact with the appellant. The
appellant and N.M. have been identified as unsafe people by all of the children’s older
siblings.
{¶50} Finally, the appellee testified that she is the guardian ad litem for the
children. She said that the older siblings were very forthright about the abuse and neglect
that happened in their parents’ home. The older three children would pile into the same
closet to sleep to be away from the bed bugs. They would stuff blankets under the door
to try and keep them out. The appellant locked them out of the house in the winter. The
neighbors had to take them in to get them warm. The appellant then threatened to kill the
neighbor if that neighbor ever had contact with the older children again. The paternal
grandfather told the appellee that during one altercation between N.M. and the appellant,
the appellant jumped from a moving car and sustained injuries.
{¶51} While being placed with the paternal grandparents, an allegation arose of
the grandfather watching pornography with the older siblings. The three older siblings
shared two rooms, and the grandmother was unable to access them due to a knee injury.
The children were removed from the care of their grandparents. {¶52} Once the appellant was incarcerated and then in treatment, N.M. was in
contact with the appellee a lot. He was good at working on the case plan. In July of 2023,
he had a positive drug screen and had to stop visitation. The appellee told N.M. that he
needed to have three negative tests to resume visitations and that it was important for
reunification. The older siblings went to live with their aunt and uncle while N.M. was
using. During that time, he threatened to kill the caseworker.
{¶53} The appellant began visiting when she was on leave from treatment. N.M.
tested positive for morphine during this time, and there were issues with dishonesty when
the appellant started her visits. When the appellant was released from treatment, the
appellee had limited contact with N.M. The older siblings told the appellee that they
wanted no contact with the appellant. They made clear that under no circumstances
would they consider living with her. The older siblings felt very betrayed that N.M. did not
protect them from the appellant.
{¶54} The appellee did a home visit with the children on January 17, 2024. They
were bonded and attached to their foster family. Both P.J.M. and D.M. have long crying
periods where they wake up crying on days that they have visitation with N.M. and the
appellant.
{¶55} N.M.’s phone calls with the older siblings were not appropriate. He would
complain about financial issues. They would then have to parent him.
{¶56} During N.M. and the appellant’s visit with P.J.M. and D.M., they did bring
appropriate equipment with them. The appellee did not notice any obvious parenting
deficiencies. {¶57} The appellee did a home visit at N.M. and the appellant’s residence. There
was an active roof leak that had been there a long time. There was concern about damage
to the inside of the wall and ceiling. There would potentially be a mold problem. The
appellee spoke with both N.M. and the appellant about reunification. N.M. said he wanted
to be reunited with all seven of his children. The appellant said that N.M. lied about the
domestic abuse. After telling N.M. and the appellant that the older siblings of the children
refused to live with the appellant, the appellant got angry and stormed out of the room. It
was clear that N.M. and the appellant did not have a plan in place for caring for the
remaining four children under the age of five.
{¶58} The appellant has been arrested several times for failing to pay her child
support. It is concerning that she cannot meet the needs of the children if they are placed
with her. After the filing the permanent custody motion, the appellant was taken into
custody on an active warrant.
{¶59} The appellant has admitted to not doing recommended counseling and
classes. N.M. confirmed his use of alcohol. Most recently, during her visits, the appellant
belittles N.M., rolls her eyes, and ignores him. She is short-tempered and demanding,
and the visitation staff is concerned about the implications of that on the children.
{¶60} On December 3, 2024, the trial court granted permanent custody to the
Agency.
{¶61} The appellant filed a timely notice of appeal and herein raises the following
four assignments of error:
{¶62} “I. THE TRIAL COURT ERRED BY FINDING THAT THE MINOR
CHILDREN ‘CANNOT BE RETURNED TO PARENTS’ AS SUFFICIENT TO FORM A FINDING UNDER R.C. 2151.353(A)(4) AS IT IS AGAINST THE MANIFEST WEIGHT
AND SUFFICIENCY OF THE EVIDENCE.”
{¶63} “II. THE TRIAL COURT ERRED BY ADJUDICATING THE GUARDIAN AD
LITEM’S MOTION FOR PERMANENT CUSTODY PURSUANT TO R.C. 2151.413 AS
THE STATUTE SPECIFICALLY CONFINES MOTIONS FOR PERMANENT CUSTODY
TO BE FILED BY A PUBLIC CHILDREN’S SERVICES AGENCY.”
{¶64} “III. THE TRIAL COURT ERRED WHEN IT FOUND THAT PERMANENT
CUSTODY WAS IN THE CHILDREN’S BEST INTERESTS, AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
{¶65} “IV. THE TRIAL COURT ERRED BY GRANTING PERMANENT CUSTODY
TO THE COSHOCTON COUNTY JOB AND FAMILY SERVICES AS THE AGENCY HAD
NOT DRAFTED A CASE PLAN SHOWING THAT THE AGENCY SOUGHT AN
ADOPTIVE FAMILY FOR THE CHILDREN AND TO PREPARE THE CHILDREN FOR
ADOPTION PURSUANT TO R.C. 2151.413(E).”
I., III.
{¶66} In the appellant’s first and third assignments of error, the appellant argues
that the trial court’s finding that the children cannot be returned to the parents is against
the manifest weight and sufficiency of the evidence and that granting the Agency
permanent custody is against the manifest weight of the evidence. We disagree.
{¶67} Both assignments of error implicate R.C. 2151.414, which authorizes a trial
court to grant permanent custody to the Agency upon a finding, by clear and convincing
evidence, that the children cannot be placed with either parent within a reasonable time and that an award of permanent custody to the Agency is in the child’s best interest. R.C.
2151.414. As such, they will be addressed together.
STANDARD OF REVIEW
{¶68} The Ohio Supreme Court addressed the standard of review in permanent
custody cases in the case of In re Z.C., 2023-Ohio-4703:
Under R.C. 2151.414(B)(1), a juvenile court may grant permanent
custody of a child to the agency that moved for permanent custody if the
court determines, “by clear and convincing evidence, that it is in the best
interest of the child” to do so and that any of five factors enumerated in R.C.
2151.414(B)(1)(a) through (e) applies. “Clear and convincing evidence is
that measure or degree of proof which is more than a mere ‘preponderance
of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to
be established.” Cross v. Ledford, 161 Ohio St.469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
We have described an appellate court’s task when reviewing a trial
court’s application of the clear-and-convincing-evidence burden of proof as
follows: “Where the proof required 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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990), citing Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526 (1887), paragraph two of the
syllabus; accord Cross at 477, 120 N.E.2d 118.
**
… sufficiency-of-the-evidence and/or manifest-weight-of-the-evidence
standards of review are the proper appellate standards of review of a
juvenile court’s permanent-custody determination, as appropriate
depending on the nature of the arguments that are presented by the parties.
Id. at ¶7-8, 11.
The Court went on to define sufficiency of the evidence and manifest weight as
follows:
Sufficiency of the evidence and manifest weight of he evidence are
distinct concepts and are “ ‘both quantitatively and qualitatively different.’ ”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517,
¶10, quoting State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541
(1997), paragraph two of the syllabus. We have stated that “sufficiency is a
test of adequacy,” Thompkins at 386, 678 N.E. 541, while weight of the
evidence “ ‘is not a question of mathematics, but depends on its effect in
inducing belief’ ” (emphasis sic), id. at 387, 678 N.E.2d 541, quoting Black’s
Law Dictionary 1594 (6th Ed.1990). “Whether the evidence is legally
sufficient to sustain a verdict is a question of law.” Id. at 386, 678 N.E.2d
541.
But “even if a trial court judgment is sustained by sufficient evidence,
an appellate court may nevertheless conclude that the judgment is against the manifest weight of the evidence.” Eastley at ¶12. When reviewing for
manifest weight, the appellate court must weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the finder of fact
clearly lost its way and created such a manifest miscarriage of justice that
the judgment must be reversed, and a new trial ordered. Id. at ¶20. “In
weighing the evidence, the court of appeals must always be mindful of the
presumption in favor of the finder of fact.” Id. at ¶21. “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.” Seasons Coal Co.,
Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). “ ‘If the
evidence is susceptible of more than one construction, the reviewing court
is bound to give it that interpretation which is consistent with the verdict and
judgment, most favorable to sustaining the verdict and judgment.’ ” Id. at
fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at
191-192 (1978).
Id. at ¶13-14.
ANALYSIS
{¶69} 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 that the trial
court schedule a hearing and provide notice upon the filing of a motion for permanent custody of a child by a public children services agency or private child placing agency
that has temporary custody of the child or has placed the child in long-term foster care.
{¶70} R.C. 2151.414(B)(1) 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, that 1) it is in the best interest of the child to grant permanent
custody to the agency; and 2) any of the following apply:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public services agencies or private child
placing agencies for twelve or more months of a consecutive twenty-two-
month period, 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 if as described
in division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state, and the child cannot be placed with either of the child’s parents within
a reasonable period of 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 placing agencies for twelve or
more months of a consecutive twenty-two-month period, or the child has
been in the temporary custody of one or more public children services agencies or private child placing agencies for twelve or more months of a
consecutive twenty-two-month period and, as described in division (D)(1) of
section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state.
{¶71} 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, the 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. In this case, the trial court found that R.C. 2151.414(B)(1)(a)
and (d) factors applied. P.J.M. and D.M. could not be placed with either parent within a
reasonable time and had been in the temporary custody of the agency for more than
twelve months of a twenty-two-month period.
{¶72} The trial court must also consider all relevant evidence before determining
that the children cannot be placed with either parent within a reasonable time or should
not be placed with the parents. R.C. 2151.414(E). The statute also provides that if the
court makes a finding under R.C. 2151.414(E)(1)-(15), the court shall determine the
children cannot or should not be placed with the parent. A trial court may base its decision
that a child cannot be placed with a parent within a reasonable time or should not be
placed with a parent upon the existence of any one of the R.C. 2151.414(E) factors. The
existence of one factor alone will support a finding that the child cannot be placed with
the parent within a reasonable time. See In re William S., 1996-Ohio-182.
{¶73} R.C. 2151.414(E) states in pertinent part: 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:
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. 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;
(9) The parent has placed the child at substantial risk of harm two or more
times due to alcohol or drug abuse and has rejected treatment two or more
times or refused to participate in further treatment two or more times after a
case plan issued pursuant to section 2151.412 of the Revised Code
requiring treatment of the parent was journalized as part of a dispositional
order issued with respect to the child or an order was issued by any other
court requiring treatment of the parent.
(11) The parent has had parental rights involuntarily terminated with respect
to a sibling of the child pursuant to this section or section 2151.33 or 2151.415 of the Revised Code, or under an existing or former law of this
state, any other state, or the United States that is substantially equivalent
to those sections, and the parent has failed to provide clear and convincing
evidence to prove that, notwithstanding the prior termination, the parent can
provide a legally secure permanent placement and adequate care for the
health, welfare, and safety of the child.
(16) Any other factor the court considers relevant.
{¶74} In the case sub judice, sufficient evidence was presented that the appellant
lost custody of multiple of the children’s older siblings. The appellant has not provided
support for the child or shown how she will be able to support the children upon their
return. She has not consistently attended or followed through on any counseling or class
recommendations as required by her case plan, she is still engaging in behavior which
has led to domestic violence accusations, she has threatened the lives of her children
and their father, she was arrested and incarcerated for failure to pay child support, she
tested positive for controlled substances when she was pregnant with D.M., she tested
positive again for controlled substances when she was pregnant with D.M.’s younger
siblings, she ignored the needs of the children’s siblings to the point they had to shut
themselves in the closet with a blanket under the door to be kept from being bitten by bed
bugs, on multiple occasions has engaged in domestic violence against N.M., on some of
the occasions of domestic violence N.M. picked up P.J.M. to use as a human shield
against the appellant’s abuse, and she threatened the life of a neighbor for helping the
children’s older siblings after the appellant locked them out of the house in the winter. Regarding the suitability of her home, although she moved from a home infested with bed
bugs, her new residence had a substantial leak in the roof for months. The damage
caused to the ceiling and drywall was not fixed in a reasonable period of time. While the
appellant and N.M. have reported that they have jobs, they routinely sleep through the
day, with the dog barking loudly, because they work the second and third shifts. They
have not identified how they would ensure the children’s needs are met during this time.
{¶75} The appellant’s argument ignores all the evidence presented other than that
focusing on the children’s siblings. Then, it concludes that such evidence is insufficient
for terminating her parental rights regarding P.J.M. and D.M. This just simply is not
accurate. Based upon all of the foregoing evidence presented by the appellee, we find
that there was sufficiently clear and convincing evidence for the trial court to find that,
while the appellant made minimal efforts to engage in the case plan, she continuously
and repeatedly failed to remedy the conditions that caused the children to be placed
outside her home. Further, the evidence presented to the trial court sufficiently
established the appellant’s struggle with chemical dependency, her unwillingness to
provide support for the children, and her inability to ensure the children have a safe and
stable home. While she did somewhat engage with the services required in the case plan,
she failed to complete and follow through on the recommendations. We find that the trial
court did not err by finding that the children could not be placed with the appellant within
a reasonable period of time or that they should not be placed with the appellant. The trial
court’s determination that granting the appellee’s motion for permanent custody was in
the best interest of the children was based on sufficient evidence and not against the
manifest weight of the evidence. {¶76} Accordingly, the appellant’s first and third assignments of error are
overruled.
II.
{¶77} In the appellant’s second assignment of error, the appellant argues that the
trial court erred when it adjudicated the appellee’s motion for permanent custody because
it was filed by a guardian ad litem instead of the Agency. We disagree.
{¶78} The Supreme Court of Ohio has found that a guardian ad litem has the
authority to file and prosecute a motion for permanent custody. In re C.T., 2008-Ohio-
4570, ¶19. In that case, the Court concluded that two provisions allow the guardian ad
litem to file motions for permanent custody:
{¶79} R.C. 2151.281(I) grants guardians ad litem with a general grant of authority
to act in the best interest of the children. The guardian ad litem “shall perform whatever
functions are necessary to protect the best interest of the child …and shall file any motions
and other court papers that are in the best interest of the child in accordance with rules
adopted by the supreme court.” Id.
{¶80} R.C. 2151.415(F) provides that “[t]he court, on its own motion or the motion
of the agency or person with legal custody of the child, the child’s guardian ad litem, or
any other party to the action may conduct a hearing * * * to determine * * * whether any
other dispositional hearing set forth in divisions (A)(1) to (5) of this section should be
issued.” Id.
{¶81} Pursuant to R.C. 2151.415(B), a dispositional order that permanently
terminates parental rights must be conducted “in accordance with sections 2151.413 and 2151.414 of the Revised Code.” Therefore, a permanent custody motion filed by a
guardian ad litem is governed by R.C. 2151.414. Accordingly, the trial court did not err in
adjudicating the motion for permanent custody filed by the appellee.
{¶82} The appellant’s second assignment of error is overruled.
IV.
{¶83} In the appellant’s fourth assignment of error, the appellant argues the trial
court erred by granting the appellee’s motion for permanent custody as the Agency did
not draft a case plan showing that the Agency sought an adoptive family for the children.
We disagree.
{¶84} The Supreme Court of Ohio has explicitly rejected this argument. R.C.
2151.413(E) “requires a children-services agency seeking permanent custody of a child
to update the child’s case plan to include adoption plans.” The Supreme Court of Ohio
has found the statute “does not require the agency to perform this action before the
juvenile court rules on the motion for permanent custody.” In re: T.R., 2008-Ohio-5219,
¶8. The appellant’s brief fails to distinguish the case at bar from T.R. Based on the clear
holding in T.R., we disagree with the appellant that the trial court erred by granting the
appellee’s permanent custody motion before the children-services agency filed a case
plan outlining the adoption plans. CONCLUSION
{¶85} Based upon the foregoing, the decision of the Coshocton County Court of
Common Pleas, Juvenile Division, is hereby, affirmed.
By: Baldwin, P.J.
Hoffman, J. and
Gormley, J. concur.