In re R.M.

2025 Ohio 1420

Opinion

[Cite as In re R.M., 2025-Ohio-1420.]

COURT OF APPEALS TUSCARAWAS COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF: : JUDGES: : Hon. Andrew J. King, P.J. R.M. : Hon. Robert G. Montgomery, J. : Hon. Kevin W. Popham, J. : : Case No. 2024 AP 12 0037 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Tuscarawas Common Pleas Court, Juvenile Division, Case No. 23JN00176

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 18, 2025

APPEARANCES:

For Appellant Father For Appellee

JUDITH M. KOWALSKI LISA VITALE ARNOLD 333 Babbitt Road, Suite 323 Tuscarawas Department of Job and Euclid, OH 44123 Family Services 389 16th Street, N.W. New Philadelphia, OH 44663

DONOVAN HILL Guardian ad litem 122 Market Avenue North DeWalt Building, Suite 101 Canton, OH 44702 Montgomery, J.

STATEMENT OF THE FACTS AND THE CASE

{¶1} R.P., the father of the minor child (Appellant) is appealing the decision of

the Tuscarawas County Court of Common Pleas, Juvenile Division, awarding

Tuscarawas County Department of Job and Family Services (Appellee) permanent

custody of R.M.

{¶2} R.M. was born on January 25, 2022 to K.M. (Mother) and Appellant. R.M.

is diagnosed with Chung Jansen Syndrome which is a rare genetic condition.

Complications from the syndrome include growth and developmental delay, intellectual

and learning disability, failure to thrive, near sightedness, seizures, constipation and

obesity.

{¶3} At the time of R.M.’s removal from Mother’s home, Mother was living with

her boyfriend and her mother (“Grandmother”) and Grandmother’s husband. The home

they lived in was in deplorable condition. Mother and her boyfriend were using

methamphetamines in the home. The minor was suffering from severe failure to thrive.

{¶4} Appellee received emergency custody of R.M. after a shelter care hearing

and filed a Complaint alleging dependency and neglect on June 20, 2023. R.M. was found

to be dependent and neglected and Appellee was granted temporary custody on

August 25, 2023. Several review hearings were held and R.M. remained in the temporary

custody of Appellee. Mother filed a Motion for Change of Legal Custody on May 10, 2024.

Appellee filed a Motion to Modify Prior Disposition to Permanent Custody for R.M. on

May 15, 2024. The trial court held a hearing on both motions on November 7, 2024, and

issued its decision on November 14, 2024. {¶5} A case plan was filed with the trial court on July 11, 2023. Concerns listed

on the case plan include child’s severe failure to thrive, poor home conditions, dirty home,

animal neglect, drug and mental health concerns and Mother’s intellectual delays.

Judgment Entry, p. 4. The case plan states that Mother “be able to demonstrate that she

can care for her child’s special needs”. That “she learns, understand and articulates

normal child behaviors expected from child and non-harmful discipline techniques”. And

that she “apply this knowledge and understanding to her care of child on a consistent

basis”. Family Case Plan, p. 1. The case plan also ordered Mother to complete a

psychological exam with Dr. Aimee Thomas. Id.

{¶6} Appellant was in and out of jail during the pendency of this case. Appellee

informed Appellant of actions he needed to take if he wanted to participate in the Family

Case Plan. Trial Transcript, p. 165. Appellant informed Appellee’s caseworker that he did

not wish to participate in the case plan services with the Appellee. Id. Appellant wants his

child to be placed into the custody of maternal grandmother. Id., p. 265.

{¶7} Dr. Aimee Thomas, an expert in the field of psychology, completed an

evaluation of Mother and found that Mother has a full-scale IQ of 40. Trial Transcript, p.

93. Dr. Thomas stated that Mother is “functioning at a level of a five and six-year-old in

terms of verbal capacity and, as well as non-verbal skills”. Id. Dr. Thomas opined that,

“Individuals functioning within this level require a lot of support towards raising children

and a lot of support in order to be safe in the community and to live independent. They

would require assistance and may not be able to live completely independently.” Id. Dr.

Thomas attempted to administer several other tests in which Mother could not complete

because of her intellect. Id. {¶8} Dr. Thomas also evaluated Grandmother and found her to have a verbal IQ

of 63 and non-verbal IQ of 48. Trial Transcript, p.106. Dr. Thomas found that, “this

indicates she’s functioning at the level of a nine-year-old in terms of verbal skills, and at

the level of a four-year-old in terms of nonverbal skills”. Id. Dr. Thomas explained that

Grandmother is significantly delayed in her ability to “perceive problematic situations,

taking information from one situation and applying it to another situation”. Id.

{¶9} Mother participated in supervised visits with R.M. Mother attended visits

regularly. During these visits, Mother brought diapers that were too small for R.M. more

than five times. Trial Transcript, p. 168. Mother brought candy and snacks to visits even

though R.M. could not eat those foods due to his medical issues. Id. The guardian ad

litem observed concerning behaviors in a visit with Mother and R.M. in that Mother was

not aware of things that could pose a physical risk to R.M. Id., p. 248. The guardian ad

litem observed R.M. climb and wobble back and forth on a chair. Mother did not intervene

until the supervisor brought it to her attention. Id. Based on the observations and reports

of Mother’s supervised visits and the report of Dr. Thomas, the guardian ad litem opined

“it was not possible for Mother to independently parent child, absent placing child in

harm’s way”. Id, p.260.

{¶10} The trial court found that, “Based upon the facts presented and the

recommendation of the guardian ad litem, the Court finds that R.M. cannot and should

not be placed with either parent within a reasonable time. The evidence supports a finding

that despite diligent, reasonable efforts and planning by the Tuscarawas County

Department of Job and Family Services to remedy the problems which caused removal

of the child, said parents have failed continually and repeatedly to substantially remedy the conditions causing removal.” Judgment Entry, p. 7. The trial court ordered R.M. be

placed in the permanent custody of Appellee pursuant to R.C. 2151.353(A)(4). Id.

{¶11} Appellant filed a timely appeal to the trial court’s decision and asserts the

following assignments of error:

{¶12} “I. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED IN FINDING THAT CLEAR AND CONVINCING EVIDENCE SUPPORTED GRANTING PERMANENT CUSTODY OF THE SUBJECT CHILD TO THE TUSCARAWAS COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES.

{¶13} II. THE AWARD OF PERMANENT CUSTODY WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶14} III. THE TUSCARAWAS COUNTY JUVENILE COURT ERRED IN FINDING THAT PERMANENT CUSTODY WAS IN THE BEST INTERESTS OF THE CHILD, WHEN THE GUARDIAN AD LITEM ADMITTED THAT HE HAD NEVER DONE A HOME VISIT WITH THE MOTHER OR GRANDMOTHER AT THEIR RESIDENCE, IN VIOLATION OF OHIO SUP.R. 48.

{¶15} IV. THE JUVENILE COURT DID NOT MAKE SUFFICIENT INDICATION ON THE RECORD THAT IT CONSIDERED ALL OF THE FACTORS IN R.C. 2151.414.

{¶16} V. THE JUVENILE COURT ERRED IN GRANTING PERMANENT CUSTODY WHEN THE TUSCARAWAS COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES DID NOT ENGAGE IN DILIGENT CASE PLAN NOR MAKE REASONABLE EFFORTS TO REUNIFY THE FAMILY.

ANALYSIS

{¶17} In his first assignment of error, Appellant claims the trial court erred when it

found clear and convincing evidence that R.M. should be placed into the permanent

custody of Appellee.

{¶18} Clear and convincing evidence is that evidence "which will provide in the

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

Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. See In re

Adoption of Holcomb, 18 Ohio St.3d 361 (1985). "Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record

to determine whether the trier of facts had sufficient evidence before it to satisfy the

requisite degree of proof." Cross at 477.

{¶19} R.C. 2151.414(B)(1) states permanent custody may be granted if the trial

court determines, by clear and convincing evidence, that it is in the best interest of the

child and:

(a) The child is not abandoned or orphaned . . . and the child cannot be

placed with either of the child's parents within a reasonable time or should

not be placed with the child's parents.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.

(d) The child has been in the temporary custody of one or more public

children services agencies or private child placing agencies for twelve or

more months of a consecutive twenty-two-month period. . . .

(e) The child or another child in the custody of the parent or parents from

whose custody the child has been removed has been adjudicated an

abused, neglected, or dependent child on three separate occasions by any

court in this state or another state.

{¶20} R.C. 2151.414(E) sets out the factors relevant to determining whether a

child cannot be placed with either parent within a reasonable period of time or should not

be placed with either parent. Said section states in pertinent part the following: (E) In determining at a hearing held pursuant to division (A) of this section

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

Code whether a child cannot be placed with either parent within a

reasonable period of time or should not be placed with the parents, the

court shall consider all relevant evidence. If the court determines, by clear

and convincing evidence, at a hearing held pursuant to division (A) of this

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

Revised Code that one or more of the following exist as to each of the

child's parents, the court shall enter a finding that the child cannot be

placed with either parent within a reasonable time or should not be placed

with either parent:

(1) Following the placement of the child outside the child's home and

notwithstanding reasonable case planning and diligent efforts by the agency

to assist the parents to remedy the problems that initially caused the child

to be placed outside the home, the parent has failed continuously and

repeatedly to substantially remedy the conditions causing the child to be

placed outside the child's home. In determining whether the parents have

substantially remedied those conditions, the court shall consider parental

utilization of medical, psychiatric, psychological, and other social and

rehabilitative services and material resources that were made available to

the parents for the purpose of changing parental conduct to allow them to

resume and maintain parental duties; (2) Chronic mental illness, chronic emotional illness, intellectual

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

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

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

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

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

Revised Code;

(3) The parent has demonstrated a lack of commitment toward the child

by failing to regularly support, visit, or communicate with the child when able

to do so, or by other actions showing an unwillingness to provide an

adequate permanent home for the child; ***

(16) Any other factor the court considers relevant.

{¶21} In determining the best interest of R.M., R.C.2151.414(D)(1) sets forth

factors to be considered but not limited to:

(a) The interaction and interrelationship of the child with the child's

parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through

the child's guardian ad litem, with due regard for the maturity of the child;

(c) The custodial history of the child, including whether the child has

been in the temporary custody of one or more public children services

agencies or private child placing agencies for twelve or more months of a

consecutive twenty-two month period, 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)(l) of section

2151.413 of the Revised Code, the child was previously in the temporary

custody of an equivalent agency in another state;

(d) The child's need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section

apply in relation to the parents and child.

{¶22} Thus, "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)(l)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child." In re Hickmann, 2007-Ohio-6104 at ¶ 17.

{¶23} The role of an appellate court is to determine whether there is relevant

competent and credible evidence upon which the fact finder could base its judgment. The

judgment of the trial court will not be reversed so long as the verdict and judgment is

within the perimeters of the conflicting evidence. Cross Truck v. Jeffries (Feb. 10, 1982)

Stark App. No CA5758, ¶¶ 2-3.

{¶24} During the hearing, the trial court heard testimony from Dr. Jirat

Chenbhanich (genetic specialist), Amy Burrier (employee with Ohio Guidestone), Kristina

Miller (foster parent of the minor), Trudy Lewis (Kinnect to Family Specialist), Skyler Smolak (caseworker with Appellee) Aimee Thomas, Ph.D. (evaluator), Attorney Donavan

Hill (guardian ad litem), Grandmother, Mother and Appellant.

{¶25} Dr. Jirat Chenbhanich testified as to the special needs of R.M. stated that

the minor “needs a significant amount of care based on the medical issues that he has.

He has some heart differences, some kidney differences. His growth and development,

there are some concerns. Feeding issues. He is seeing more than five specialists, so he

needs significant amount of care by both the primary care provider, who will be the

centralized person, and also all of the specialists.” Trial Transcript, p. 22.

{¶26} After assessing both Mother and Grandmother, Dr. Aimee Thomas stated

that, “Even if R.M. didn’t have these special needs, I would be of the opinion, based on

their intellectual capacity and the history, that they would not be able to independently

raise this child.” Trial Transcript, p. 129.

{¶27} Appellee caseworker Skyler Smolak relayed to the court that, “Mother

required help from the visitation aide to provide adequate care during the visit.” Trial

Transcript, pp. 167-168. Mr. Smolak went on to state, “Mother brought candy and other

snacks to visits for R.M., even though he cannot eat those items due to his medical

issues.” Id., p. 168. Mr. Smolak also told the court that Mother “brought diapers that were

too small for R.M. to visits more than five times”, Id., p. 168.

{¶28} The guardian ad litem testified as to his concerns regarding placement of

R.M. with Mother and/or Grandmother. Mr. Hill testified that he had observed “concerning

behaviors in visits with Mother and the minor in that Mother was not aware of things that

could pose a physical risk to the minor. Trial Transcript, p. 248. He informed the trial court that he had witnessed situations where the child was placing himself in a dangerous

situation and Mother did not intervene. Id.

{¶29} Mother participated in the Family Case Plan and completed the

requirements that were set out for her. However, the concerns which lead to R.M.’s

removal were not remedied. Mother and R.M. did not progress past supervised visits and

Mother could not show she could care for R.M. Mother was unable to articulate that she

understood R.M.’s specific medical needs. When questioned, she simply stated, “He

needs a lot of care.” Trial Transcript, pp. 334-335. When asked to be more specific as to

the kind of care R.M. needs, Mother responded, “Love, like love, care (inaudible).” Id, p.

335.

{¶30} This Court has reviewed the record and finds that the trial court had

sufficient evidence before it to decide that there was clear and convincing evidence that

R.M. should be placed into the permanent custody of Appellee.

{¶31} Appellant further argues that the trial court’s decision was against the

manifest weight of the evidence.

{¶32} On review for manifest weight, the standard in a civil case is identical to the

standard in a criminal case: a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly

lost its way and created such a manifest miscarriage of justice that the conviction

[decision] must be reversed and a new trial ordered". State v. Martin, 20 Ohio App.3d

172, 175 (1st Dist. 1983). In State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting

Black's Law Dictionary (6th Ed. 1990), the Supreme Court of Ohio explained the following: a. Weight of the evidence concerns "the inclination of the greater

amount of credible evidence, offered in a trial, to support one side of the

issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the

evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them. Weight

is not a question of mathematics but depends on its effect in inducing belief."

(Emphasis in original.)

b. In weighing the evidence, we are always mindful of the presumption

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

2179.

{¶33} Appellant argues that the testimony of Mr. Smolak was not credible because

Mother had allegedly made allegations of assault against him. Appellant asserts that Mr.

Smolak may be biased against Mother because of this allegation. Appellant Brief, p. 33.

However, there is nothing in the record to show that Mr. Smolak was biased against

Mother. Appellant further argues that Dr. Thomas stated that Appellee should be seeking

a relative to care for the child so that Mother could maintain contact with R.M. However,

Dr. Thomas’ statement was a recommendation, not an order. Furthermore, as previously

stated, Appellee attempted to find a relative placement for R.M., but its efforts were

unsuccessful. Finally, Appellant argues that there may have been a misunderstanding

regarding his ability to access the services of Appellee. Upon a review of the trial

transcript, this Court finds no evidence that Appellant was confused. Appellant testified at

the trial and did not state that he was confused regarding his ability to participate in the Family Case Plan. Appellant’s testimony on direct examination centered on his desire to

have R.M. placed with Grandmother. Trial Transcript, pp. 264-266.

{¶34} Based upon the testimony and evidence presented, the trial court did not

lose its way in making the decision to deny Mother’s motion and grant Appellee’s motion

to terminate Mother's parental rights and grant permanent custody of R.M. to Appellee;

we do not find any manifest miscarriage of justice.

{¶35} In his third assignment of error, Appellant argues that the trial court erred in

granting permanent custody to Appellee where the guardian ad litem did not visit the

home of Mother and Grandmother at their residence pursuant to Ohio Sup.R.48.

{¶36} Appellant states in his brief that, “Ohio appellate courts have indicated that

the Rules of Superintendence are general guidelines for the conduct of the courts and do

not create substantive rights in individuals or procedural law.” In Re K.G., 2010-Ohio-

4399. This Court has stated, “Rule 48(D) of the Ohio Rules of Superintendence is a

lengthy statement of the basic responsibilities of a GAL serving in an Ohio court, which

are to be performed ‘unless impracticable or inadvisable to do so’.” In the Matter of M.G.,

2023-Ohio-695. “These responsibilities include representing the best interest of the child

for whom the GAL is appointed, maintaining independence, objectivity, and fairness

acting as an officer of the court, participating in pertinent hearings, resolving any conflicts

of interest that may arise, meeting qualifications and training requirements, making

reasonable efforts to become informed about the case, contacting the parties, maintaining

confidentiality, and numerous other considerations.” Id.

{¶37} The guardian ad litem had multiple conversations with Mother, witnessed a

visit between Mother and R.M., attended court hearings, reviewed the discovery and filings in the case and met with R.M. numerous times. Appellant argues that since Mother

completed her case plan, the guardian ad litem should have visited Mother’s home to

determine if it was suitable. Appellant fails to take into consideration that Mother had not

progressed past supervised visits with R.M. The guardian ad litem stated, “the status of

the home would not have in any way resolved or surmounted the issues raised in Dr.

Thomas’ report and thus it was not a deciding factor”. Trial Transcript, p. 256. Had the

case progressed past supervised visits between Mother and R.M., the guardian ad litem

testified that he would have visited Mother’s home. “But in this case, had it gotten to a

point where the status of the home was now sort of a live question, then, yes I would have

done so.” Id., p. 256.

{¶38} Appellant argues Sup. R. 48 requires the guardian ad litem to visit the home

of the parents as part of his investigation and his failure to do so makes his testimony not

credible. This Court does not agree. The guardian ad litem in this case followed the

general guidelines as outlined in Sup.R. 48. A visit to the home of Mother is not a

requirement. In this case the proposed residence of R.M. was the home of the foster

parents. The guardian ad litem visited R.M. in this home numerous times. Trial Transcript,

p. 246. Therefore, Appellant’s third assignment of error is overruled.

{¶39} Appellant argues in his fourth assignment of error that the trial court did not

make sufficient indication on the record that it considered all of the factors in R.C.

2151.414. We disagree.

{¶40} The Ohio Supreme Court held in In re. A.M., 2020-Ohio-5102, that “R.C.

2151.414(D)(1) does not require a juvenile court to expressly discuss each of the best-

interest factors in R.C. 2151.414(D)(1)(a) through (e). Consideration is all the statute requires. Although a reviewing court must be able to discern from the magistrate's or

juvenile court's decision and the court's judgment entry that the court satisfied the

statutory requirement that it consider the enumerated factors, we may not graft onto the

statute a requirement that the court include in its decision a written discussion of or

express findings regarding each of the best-interest factors.”

{¶41} The Judgment Entry of the trial court made 49 findings of fact that it found

to be true by clear and convincing evidence. These findings included, but were not limited

to, the R.M.’s medical needs, Appellee’s concerns listed on the case plan, Mother and

Grandmother’s intellectual deficits and cognitive delays, Mother’s inability to move past

supervised visits with R.M., Appellant’s desire to not engage in the case plan, R.M.’s bond

with the foster family, and the report of the guardian ad litem.

{¶42} The Judgment Entry states, “Considering all the factors listed in 2151.414,

the Court finds that it is in the best interest of R.M. to be placed in the permanent custody

of the Tuscarawas County Department of Job and Family Services. The Court further

finds the harm caused by severing the bond with parents is outweighed by the benefits of

permanency in the child’s life.” Id., p. 8.

{¶43} The judgment entry of the court clearly states that it considered all the

factors in R.C. 2151.414. Upon review of the court's judgment entry, this Court finds that

the trial court satisfied the statutory requirement that it consider the enumerated factors.

Appellant’s fourth assignment of error is overruled.

{¶44} In his final assignment of error, Appellant argues that the trial court erred in

granting permanent custody to Appellee because Appellee did not engage in diligent case

plan nor make reasonable efforts to reunify the family. We disagree. {¶45} Appellant argues Mr. Smolak did not pursue case plan services for

Appellant. This is not true. Appellant was incarcerated at the time R.M. was removed from

his home. Mr. Smolak and Appellant had a Zoom visit on September 13, 2023 to discuss

Appellant’s options once he was discharged from jail. Trial Transcript, p. 165. Mr. Smolak

scheduled two appointments with Appellant after he was released, but Appellant did not

attend. Id., p. 165. Mr. Smolak and Appellant met on December 4, 2023, wherein

Appellant was informed of case plan services. Id. Appellant informed Mr. Smolak that he

did not wish to complete a case plan. Id.

{¶46} In determining if reasonable efforts have been made by Appellee to reunify

the child with the Appellant, “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.” Matter of M.G., 2023-Ohio-695 at ¶ 69.

There is evidence in the record to show that Appellee attempted to engage Appellant in

case plan services, but Appellant chose not to participate. Appellee’s efforts were

reasonable and diligent under the circumstances of this case. Appellant’s final

assignment of error is denied. CONCLUSION

{¶47} The Court hereby affirms the decision of the Tuscarawas County Court of

Common Pleas, Juvenile Division, issued on November 19, 2024.

By: Montgomery, J.

King, P.J. and

Popham, J. concur.