[Cite as In re P.T., 2024-Ohio-5022.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: IN THE MATTER OF: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Andrew J. King, J. P.T. S.T. Case Nos. 2024 CA 00101 J.T. 2024 CA 00102 H.T. 2024 CA 00103 2024 CA 00104
MINOR CHILDREN OPINION NUNC PRO TUNC
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case Nos. 22JVC01431, 01432, 01433 and 01434
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: October 22, 2024
APPEARANCES:
For Plaintiff-Appellant Mother For Defendant-Appellee
KATELYN SHOEMAKER BRANDON J. WALTENBAUGH 201 Cleveland Avenue, SW STARK COUNTY DJFS Suite 104 402 2nd Street, SE Canton, Ohio 44702 Canton, Ohio 44702 Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 2
Wise, J.
{¶1} Appellant Mother appeals the June 12, 2024 judgment entries of the Stark
County Court of Common Pleas, Family Court Division, awarding permanent custody of
her four children to the Stark County Department of Job and Family Services
(SCDJFS/Agency). For the reasons that follow, we affirm the decision of the Family
Court.
FACTS AND PROCEDURAL HISTORY
{¶2} P.T., dob August 31, 2010; S.T., dob November 2, 2012; H.T., dob October
28, 2014 and J.T., dob December 7, 2016, are the biological children of appellant-mother,
C.B. J.T., the children’s biological father, is not part of this appeal, having voluntarily
relinquished permanent custody of the children to SCDJFS.
{¶3} The family became involved with the Family Court in December, 2022 when
a complaint alleging dependency and/or neglect was filed alleging substance abuse,
criminal activity, deplorable home conditions, lack of compliance with non-court services,
and a family member removing one of the children from the hospital against medical
advice.
{¶4} On December 9, 2022, the trial court held an emergency shelter care
hearing and found that probable cause existed for the issuance of emergency orders;
emergency temporary custody of the four children was granted to SCDJFS.
{¶5} A case plan was prepared by the Agency for both the mother and father and
approved and adopted by the trial court. The case plan for the mother included substance
abuse treatment, stable housing, mental health treatment and drug and alcohol
screening. The goal of the plan was reunification. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 3
{¶6} On March 7, 2023, the matter was set for trial. The allegations of neglect
were deleted from the complaint, and mother and father stipulated to a finding of
dependency.
{¶7} Temporary custody of the children remained with SCDJFS. Case plans for
the parents were approved and adopted by the trial court.
{¶8} Review hearings were held June 6, 2023, November 3, 2023, and January
3, 2024.
{¶9} Mother continued to struggle with the case plan. Her drug screenings were
positive for cocaine and methamphetamine, she did not comply with some scheduled
drug screenings, was not engaged in scheduled social services, was indicted on felony
drug charges, was evicted, was inconsistent with housing and employment, was
incarcerated and had uneven visits and telephone calls with the children.
{¶10} On April 16, 2024, the Agency filed a motion for permanent custody of all
four children.
{¶11} On June 10, 2024, the motion for permanent custody came on for hearing
before the Hon. Rosemarie A. Hall, of the Stark County Court of Common Pleas, Family
County Division.
{¶12} Present at the hearing were the Guardian ad Litem, the father, counsel for
father, the Agency and counsel, and Zina Biehl, caseworker for the Agency. The mother
was a resident of Stark County Community Correction Center (SRCCC) as a result of her
criminal conviction and appeared for the hearing via ZOOM. Her counsel attended the
hearing in person. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 4
First Phase – Grounds for permanent custody
{¶13} The caseworker testified that the children have been in the temporary
custody of the Agency for at least 12 of the last 22 months. Tr., June 10, 2024 at 9.
{¶14} The caseworker testified that in December, 2022, the Agency filed a
complaint for an emergency shelter care hearing when one of the children was removed
from the hospital against medical advice, the house was in disarray and deplorable, and
there was continued drug abuse by the mother. The trial court found that probable cause
existed for the issuance of the emergency orders and granted temporary custody of the
children to SCDJFS.
{¶15} A case plan was developed to allow mother to regain custody of the
children. Mother completed drug assessments at CommQuest and intensive outpatient
treatment to residential treatment was suggested. Meanwhile, during this period, mother
violated her probation and was placed in residential treatment for 26 days. After the stay,
mother requested a drug screening. The results came back positive for cocaine.
{¶16} Between December, 2022 and March, 2024, mother tested positive for
several drugs including cocaine and methamphetamine.
{¶17} She was indicted and pled guilty to fentanyl drug possession charges in
January, 2024. She was sentenced to three-years’ probation and ordered to attend
intensive outpatient rehabilitation. When she was discharged from outpatient
rehabilitation for noncompliance, her probation was revoked and she was ordered to
confinement at SRCCC.
{¶18} In short, since the children were removed from her care, she has continued
to test positive for illegal drugs and been involved in two more criminal cases involving Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 5
drug possession. At the time of the hearing, she had no gainful employment and no
housing suitable for the children.
{¶19} The caseworker further testified that mother’s visits with the children were
bi-weekly for two hours and she was allowed telephone calls with them. She usually
brought food to eat on those visits and while the visits were sometimes chaotic with four
children clamoring for attention, the children loved their mother and wanted to spend time
with her.
{¶20} The caseworker concluded her testimony by opining that while the Agency
had made reasonable efforts to try to reunify mother with the children, it was unsuccessful.
At the time of the hearing, mother was a resident at SRCCC for at least another 90 days
and still on probation for drug possession.
Second Phase – Best interests of children
{¶21} The caseworker testified that none of the children have any serious
developmental issues. They are in counseling and doing well in school.
{¶22} They were placed with their maternal grandfather in January, 2023 and
have lived with him, his wife and her two children. The children of the wife of the
grandfather are ages 16 and 21.
{¶23} The caseworker testified she visited the home at least 20 times since the
opening of the case and while grandfather’s home is much different than living with mother
and father, the children are adjusting to the changes. The grandfather’s home is more
structured with limited access to electronics and cell phone usage.
{¶24} Maternal grandfather would like to pursue adoption of the children and is
not interested in legal custody. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 6
{¶25} The caseworker opined that while the children love their parents, their need
for stability outweighs their bond. It is in the children’s best interests for the court to grant
permanent custody.
{¶26} Mother testified that after her residency at SRCCC terminated, she was
promised employment with McGee Movers and her employer would provide rental of a
home on Oby Place in Canton, Ohio. She did not want to lose custody of her children
and wanted more time to work on her case plan.
{¶27} At the close of the hearing, the guardian ad litem testified that it was his
opinion that the best interests of the children were best served by remaining with the
grandfather.
{¶28} He observed the children with both the mother and in the grandfather’s
home. He opined that the children were enjoying school and thrived with the structure
they received in the grandfather’s home.
{¶29} At the conclusion of the hearing, the trial court took the matter under
advisement.
Trial Court decision
{¶30} On June 12, 2024, the trial court granted permanent custody of all four
children to SCDJFS and terminated the parents’ parental rights and responsibilities. It
filed Findings of Fact and Conclusions of Law separately for each of the children
consisting of twenty-one pages and a separate Judgment Entry, Findings of Fact and
Conclusions of Law; Judgment Entry, June 12, 2024.
{¶31} It found that the children have been in temporary custody for 12 or more
months of a consecutive 22-month period. It also found that father wishes to relinquish Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 7
parental rights to the children. It further found that despite reasonable efforts by SCDJFS,
the four children could not be placed with either parent at this time or within a reasonable
period of time. Finally, it found that it was in the best interests of the four children that
permanent custody be granted to the SCDJFS. Judgment Entry, June 12, 2024.
{¶32} Mother timely appealed arguing two assignments of error:
ASSIGNMENTS OF ERROR
{¶33} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES
(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
THAT GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION
WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶34} “II. THE TRIAL COURT ERRED IN GRANTING PERMANENT
CUSTODY TO STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES
(SCDJFS) AS SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE
THAT IT IS IN THE BEST INTERESTS OF THE MINOR CHILD TO GRANT
PERMANENT CUSTODY AND SUCH DECISION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.”
LAW AND ANALYSIS
Standard of Review in Permanent Custody
{¶35} In In re Z.C., 2023-Ohio-4703, the Ohio Supreme Court resolved a certified
conflict between two Ohio appellate districts regarding the appropriate standard of review
for permanent custody decisions made pursuant to R.C. 2141.414. Id. at ¶ 1. The court
concluded that the appellate standard of review for a permanent custody decision was Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 8
sufficiency of the evidence/manifest weight of the evidence. Id. at ¶ 18. Recognizing that
sufficiency and manifest weight of the evidence are separate and distinct standards, the
court stated that the appellate court must apply the standard “as appropriate depending
on the nature of the arguments that are presented by the parties.” Id. at ¶ 11.
{¶36} Here, appellant-mother frames her alleged errors in the trial court granting
permanent custody to SCDJFS as against the manifest weight of the evidence and lack
of clear and convincing evidence.
{¶37} Accordingly, we review the assigned errors under a manifest weight of the
evidence standard.
{¶38} Because both assignments of error argue manifest weight of the evidence,
they will be addressed together.
{¶39} On review for manifest weight, the standard in a civil case is identical to the
standard in a criminal case: a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine “whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly
lost its way and created such a manifest miscarriage of justice that the conviction
[decision] must be reversed and a new trial ordered. State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist., 1983); State v. Thompkins, 1997-Ohio-52.
{¶40} Because the fact finder is in the best position to weigh the credibility of the
witnesses and observe their demeanor, a reviewing court will always be mindful of the
presumption in favor of the trial court’s factual findings. Eastley v. Volkman, 2012-Ohio-
2179, ¶ 21. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 9
Burden of proof for permanent custody
{¶41} An award of permanent custody must be based on clear and convincing
evidence, R. C. 2151.414(B)(1). 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, 120 N.E.2d 118. If
some competent, 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 (1978).
R.C. 2151.414(B) Determinations by Trial Court
{¶42} Pursuant to R.C. 2151.414(B), a trial court may grant permanent custody of
a child to a movant if the court determines at the hearing, by clear and convincing
evidence, that it is in the best interest of the child to grant permanent custody of the child
to the agency that filed the motion for permanent custody and that one of four
circumstances apply. In practice, a trial court will usually determine whether one of the
four circumstances outlined in R.C. 2151.414(B)(1)(a) through (d) is present before
proceeding to a determination regarding the best interest of the child.
{¶43} R.C. 2151.414(B) authorizes the 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 Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 10
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, (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.
{¶44} If the child is not abandoned or orphaned, the focus turns to whether the
child cannot be placed with either parent within a reasonable period of time, or should not
be placed with the parents.
{¶45} Here, the trial court made findings pursuant to R.C. 2151.414(B)(1)(a)
(Reasonable time) and R.C. 2151.414(B)(1)(d) (12 months in 22 months) “For the
reasons stated in those findings and conclusions, the Court finds by clear and convincing
evidence: 3. P.T. has been in the temporary custody for 12 or more months of a
consecutive 22-month period.” Judgment Entry June 12, 2024 No. 3. “For the reasons
stated in those findings and conclusions, the Court finds by clear and convincing evidence
that P.T. cannot be placed with either parent at this time or within a reasonable period of
time.” Judgment Entry, June 12, 2024 No. 6.1
{¶46} As long as one of these factors is present, then the first prong of the test is
satisfied. 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. One of these findings alone, coupled with best interest finding, is
1 The trial court made identical findings for all four of the children. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 11
sufficient to support the granting of permanent custody. In re. L.A., 2024-Ohio-3436, ¶
75 (5th Dist.).
{¶47} Appellant argues that she substantially complied with her case plan,
disputing the trial court’s finding of reasonable time. R.C. 2151.414 (B)(1)(a). The
undisputed record, however, belies that claim. Appellant’s case plan revolved around
the main goal of mother being free of substance abuse. Mother fell woefully short of that
goal. After the children were placed in emergency custody in December, 2022 to the time
of the permanent custody hearing in April, 2024, mother was indicted two times for
criminal charges involving drug possession. Indeed, in January, 2024, she was found
guilty of aggravated possession of Fentanyl. She tested positive for cocaine and
methamphetamine during this period. She was not compliant with drug screening and
refused to enter residential treatment when intensive outpatient rehabilitation failed. Her
probation was revoked for noncompliance with drug treatment and at the time of the
permanent custody hearing, she was a resident of SRCCC with a release date no sooner
than ninety days.
{¶48} To be sure, the exact problems with drug abuse that led to the initial removal
of the children remained in existence at the time of the complaint for permanent custody.
{¶49} With regard to her future plans for the children, mother testified that upon
her release, she had been promised employment with McGee Movers and a home to rent
from her employer. But she produced no proof of such plan, stating that she planned to
get a writing on letterhead from her employer in the future.
{¶50} While appellant disputes the finding that the children cannot be placed with
her within a reasonable time, she does not and cannot dispute the fact that the children Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 12
were in the temporary custody of the Agency for 12 or more months of a consecutive 22-
month period, as found by the trial court. R.C. 2151.414(B)(1)(d). The children were found
dependent on March 7, 2023 and placed in the temporary custody of SCDJFS. The
children remained in the temporary custody of the Agency throughout the case. The
motions requesting permanent custody were filed on April 16, 2024. The period of time
is well in excess of 12 months.
{¶51} This Court has adopted the position that proof of temporary custody with an
agency for twelve or more months of a consecutive twenty-two-month period alone is
sufficient to award permanent custody. In re. D.H., 2022-Ohio-4495, ¶ 59 (5th Dist.).
Therefore, a finding that grounds existed for permanent custody cannot be against the
manifest weight of the evidence. Matter of L.G., 2021-Ohio-743, ¶ 36 (5th Dist.).
Best Interest Determination by Trial Court
{¶52} In determining the best interest of the children at the permanent custody
hearing, the trial court must consider all relevant factors, including but not limited to the
following: (a) the interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster parents and out-of-home providers, and any other person who
may significantly affect the child; (b) the wishes of the child as expressed directly by the
child or through the guardian’s ad litem, with due regard for the maturity of the child; (c)
the custodial history of the child; (d) the child’s need for a legally secure permanent
placement and whether that type of placement can be achieved without a grant of
permanent custody; and (e) whether any of the factors in division (E)(7) to (11) of R.C.
2151.414 apply in relation to the parents and child, R.C. 2151.414(D). Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 13
{¶53} 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 a 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: E.H.,
2022-Ohio-1682, ¶ 101 (5th Dist.) quoting In re: Manzy Children, 5th Dist., No.
2000CA00244, 2000 WL 170073 (Nov. 13, 2000) citing In re: Awkal, 95 Ohio App.3d 309,
316, 642 N.E.2d 424 (8th Dist., 1994).
{¶54} The trial court found that it is in the children’s best interests that SCDJFS
be awarded permanent custody and thus eligible for a permanent adoptive home. We find
there was competent, credible evidence to support the trial court’s decision and it is not
against the manifest weight of the evidence.
{¶55} The trial court heard the testimony of Zina Biehl, the case worker assigned
to the children’s cases and read the final report of the GAL and heard his testimony.
{¶56} The trial court found that at the time of the permanent custody hearing in
June, 2024, T.T. was 13 (dob August 31, 2010); S.T. was 11 (dob November 2, 2012);
H.T. was 9 (dob October 28, 2013); and J.T. was 7 (dob December 7, 2015). They have
been in the same foster home since January, 2023, with their maternal grandfather. Also
living in the home is his wife and her two children.
{¶57} The children have no significant developmental delays, although H.T. may
need an evaluation for ADHD and/or anxiety. The children are in counseling and
benefitting from the structure found in their grandfather’s home.
{¶58} The caseworker visited the grandfather’s home at least once a month
estimated to be at least twenty times. She found the children are bonded at their Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 14
grandfather’s home with rules that are much different than mother and father. Their
electronic and cell phone usage is restricted.
{¶59} The children are doing well in the new school district. The grandfather and
his home meet all of the children’s needs.
{¶60} The trial court further made a finding that grandfather is interested in
adopting the children in the future and is not interested in a change of legal custody. The
grandfather may let mother visit with the children in the future if she is stable and getting
treatment.
{¶61} Mother argues that the children expressed love for their parents and wanted
to visit mother throughout the case. However, the caseworker also testified that the
mother often missed telephone calls with the children or would call too late in the evening.
She further testified the children were disappointed with mother and would not talk to her,
hoping that if they did not take her phone calls, she would become upset and want to
work on her services.
{¶62} Mother argues that if given more time to work on the case plan, she can
remain clean and sober and find employment and housing. However, the evidence
suggests that mother had ample time to work on her case plan services and little to no
progress was made. Instead, during that time, mother tested positive for drugs and was
charged with two crimes involving drug abuse.
{¶63} Mother argues that there is a viable option in a change of legal custody
rather than the more onerous order for permanent custody. However, grandfather does
not want legal custody but favors adoption to provide the children with a stable home. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 15
{¶64} Mother argues that SCDJFS did not meet its burden of proving that an
award of permanent custody to the Agency is in the children’s best interests, again
arguing that she substantially complied with the case plan and has plans for employment
and a home for the children. However, the evidence demonstrates that any detriment
which may occur by severing any bond is outweighed by the benefits of permanency for
the children.
{¶65} As found by the trial court, the children deserve to be in a stable, loving
environment.
{¶66} The clear and convincing evidence here supports the trial court’s finding
that the children’s, P.T., S.T., H.T. and J.T., best interests are served by awarding
SCDJFS permanent custody thus making them eligible for a permanent adoptive home.
{¶67} The trial court’s findings are not against the manifest weight of the evidence
and appellant’s first and second assignments of error are overruled.
CONCLUSION
{¶68} This Court finds that the trial court carefully weighed the evidence and found
by clear and convincing evidence that P.T., S.T., H.T. and J.T. cannot be placed with
either parent within a reasonable time, the children have been in the custody of SCDJFS
for over twelve months of a 22-month-period and that permanent custody of P.T., S.T.,
H.T. and J.T. to SCDJFS are in their best interests. Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 16
{¶69} Mother-Appellant’s Assignments of Error are overruled.
{¶70} The judgment of the Court of Common Pleas, Juvenile Division, Stark
County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
King, J., concur.
JWW/kt 1015 Stark County, Case Nos. 2024 CA 00101, 00102, 00103, 00104 17