In re S.P.

2023 Ohio 1210

Opinion

[Cite as In re S.P., 2023-Ohio-1210.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF S.P. : JUDGES: : Hon. W. Scott Gwin, P.J. : Hon. Patricia A. Delaney, J. : Hon. Andrew J. King, J. : : : Case No. 2022CA00164 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas Family Court Division,Case No. 2021JCV00408

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 11, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

BRANDON J. WALTENBAUGH KATHALEEN S. O’BRIEN 402 2nd Street SE 116 Cleveland Avenue NW Canton, OH 44708 Suite 303 Stark County, Case No. 2022CA00164 2

Canton, OH 44702 King, J.

{¶ 1} Appellant Mother appeals the September 29, 2022 judgment entry of the

Stark County Court of Common Pleas Family Court Division terminating her parental

rights and granting permanent custody of her child S.P. to the Stark County Department

of Job and Family Services (SCJFS).

FACTS AND PROCEDURAL HISTORY

{¶ 2} J.B. is the mother ("Mother") of S.P. who was born December 16, 2020.

SCJFS became involved with the family shortly thereafter due to concerns involving drug

use by both parents, active warrants for both parents, Mother's history with social service

agencies involving the removal of three other children from her custody, and Mother's

poorly-managed epilepsy.

{¶ 3} SCJFS initially attempted to put a safety plan in place which included using

maternal grandmother as a safety plan monitor. However, Mother, Father, and

Grandmother all tested positive for methamphetamines. As a result, an emergency

shelter care hearing was held on February 2, 2021 wherein the trial court found probable

cause for the involvement of SCJFS, that SCJFS had made reasonable efforts to prevent

the removal of S.P. from the home, and that S.P.'s continued residence with parents was

not within S.P.'s best interests. The trial court granted temporary custody of S.P. to the

SCJFS. Neither Mother nor Father attended the hearing.

{¶ 4} On April 30, 2021, Father appeared for the first time and requested counsel.

Due to statutory time constraints, the complaint was dismissed and refiled the same day. Stark County, Case No. 2022CA00164 3

The concerns outlined in the initial complaint were identical to those outlined in the refiled

complaint. S.P. remained in the temporary custody of SCJFS.

{¶ 5} On May 3, 2021, a second emergency shelter care hearing was held with

the same concerns and results as the first. The trial court found SCJFS had made

reasonable efforts to prevent the removal of S.P. from the home, and S.P. was continued

in the temporary custody of SCJFS.

{¶ 6} On May 26, 2021, an adjudicatory hearing was held. The trial court set the

matter for evidence on July 8, 2021.

{¶ 7} On July 8, 2021, S.P. was adjudicated dependent. On the same day, a case

plan for parents was approved and adopted. The plan required both parents to complete

a parenting assessment, substance abuse treatment, and follow through with all

treatment recommendations. The trial court found SCJFS had made reasonable efforts

to finalize permanency planning and compelling reasons existed to preclude a filing for

permanent custody. The court further found both parents were using drugs, both had

active warrants for their arrest, and neither were cooperating with non-court services.

{¶ 8} Both Mother and Father completed their assessments with Dr. Aimee

Thomas. Dr. Thomas' concerns for Mother's ability to safely parent S.P. included the fact

that she had lost custody of three other children due to her issues centering on substance

abuse. Dr, Thomas also noted Mother's seizure disorder was not being adequately

addressed at the time of her evaluation due to questionable compliance with her

medication which impacted her ability to safely parent S.P. Thomas also had concerns

regarding Mother's dependent relationship with Father due to Father's extensive criminal

and substance abuse history. Stark County, Case No. 2022CA00164 4

{¶ 9} Thomas recommended Mother engage in weekly aftercare classes, twelve-

step meetings, maintain sobriety, cooperate with random drug screens, and engage in

individual counseling. Additionally, Mother was to engage with a neurologist to stabilize

her seizure disorder. Because Mother has a full-scale IQ of 77 she required a structured

approach to parenting-skill training with more repetition. For that reason, the Goodwill

Parenting program was specifically recommended for Mother.

{¶ 10} Both Mother and Father were required to demonstrate nine months of

sobriety before reunification with S.P.

{¶ 11} On July 22, 2021 the court reviewed the case plan, found SCJFS had made

reasonable efforts, and ordered status quo.

{¶ 12} On November 30 2021, SCJFS filed a motion to extend temporary custody

for six months. Parents had moved to a different county and needed to locate and utilize

providers relevant to their case plan.

{¶ 13} On December 28, 2021 the trial court reviewed the matter, approved and

adopted the case plan, and found SCJFS had made reasonable efforts to finalize the

permanency planning, had made intensive efforts to identify and engage kinship

caregivers for S.P., and ordered status quo. The motion to extend temporary custody was

set for evidence on January 27, 2022. The court found Father had been discharged from

substance abuse treatment due to positive drug screens and non-compliance. The court

further found Mother was not engaged in substance abuse treatment and neither parent

was engaged in individual counseling. Stark County, Case No. 2022CA00164 5

{¶ 14} On January 27, 2022, Parents stipulated to the motion to extend temporary

custody and the trial court granted the same. The trial court found SCJFS had made

reasonable efforts, and ordered SCJFS to begin seeking permanency for S.P.

{¶ 15} On June 21, 2022, SCJFS filed a motion for permanent custody of S.P. The

motion alleged in part that S.P. could not be placed with Parents within a reasonable

amount of time, that S.P. had been in the continuous custody of SCJFS for 12 or more

months in a consecutive 22-month period, and that permanent custody was within S.P.'s

best interests.

{¶ 16} On June 28, 2022, the trial court reviewed the matter, found reasonable

efforts by SCJFS to finalize permanency planning, engage willing kinship caregivers for

S.P., ordered status quo, and found there were no compelling reasons to preclude a

request for permanent custody. The trial court specifically found Parents had failed to

follow through with mental health counseling, had not completed substance abuse

treatment, had refused drug testing since December 2021, and struggled with both stable

housing and consistency during visits with S.P. Parents were staying with family members

or in hotels. At the time of the review they were staying with Father's aunt in Pennsylvania.

{¶ 17} On September 19, 2022, the assigned Guardian Ad Litem (GAL) filed her

final report. In it the GAL noted her concerns surrounding Parents ability to safely parent

S.P. and recommended the trial court grant SCJFS's motion for permanent custody.

{¶ 18} The permanent custody hearing was held on September 28, 2022. SCJFS

caseworker Nicole Hadden was assigned to this case. She testified she became involved

in the matter nearly two years before the hearing due to concerns including drug use by

both parents, active warrants for both parents, Mother's extensive history of losing Stark County, Case No. 2022CA00164 6

custody of other children, and both parents failing to cooperate with non-court case plan

services. Hadden testified the initial complaint had been filed on February 2, 2021 and

that S.P. had been in the continuous temporary custody of the SCJFS since that date.

{¶ 19} Hadden described the case plan for Mother and Father. As of the date of

the hearing, Mother had not complied with substance abuse treatment nor random drug

testing. Mother had refused to test since December of 2021 when she tested positive for

methamphetamines. Mother engaged in individual counseling but failed to stay with it long

enough to address the concerns raised by Dr. Thomas. Mother completed a parenting

program, but not one that Thomas felt was most appropriate to Mother's needs.

{¶ 20} Hadden testified that Parents moved to a different county and failed to

complete most of the requirements of their case plan. Hadden attempted to secure drug

testing for parents when they moved out of county, and offered screening on the multiple

occasions they came to Stark County to visit S.P., but parents still failed to comply.

{¶ 21} Hadden testified that despite reasonable efforts by SCJFS parents failed to

successfully complete their case plan services. She therefore believed there were

compelling reasons to grant SCJFS's motion for permanent custody.

{¶ 22} As to best interests, Hadden testified that parents visited S.P. regularly and

the visits went well for the most part. She noted S.P. was bonded with her foster parents,

but not Mother and Father. On one occasion parents brought developmentally

inappropriate food to the visit. When the matter was discussed with them, parents became

defensive. Hadden explored two potential kinship placements, only one of which was a

possibility. S.P.'s foster family was willing to adopt S.P. Stark County, Case No. 2022CA00164 7

{¶ 23} Father testified he and Mother visited S.P. in Stark County at least 60 times

requiring two hours of driving round trip. Father believed S.P. was bonded with he and

Mother, was aware of who her parents are, and that her best interests were served by

being with he and Mother.

{¶ 24} The GAL testified that parents had been given a lot of time, support, and

options to get sober and to engage in counseling but have failed to take advantage of

those opportunities. The GAL added that while parents complain SCJFS did not find a

drug testing facility in Pennsylvania for them, parents had the opportunity to take a drug

screen each time they visited S.P. but failed to do so. The GAL also opined uprooting

S.P. who has special needs challenges and is non-verbal would be detrimental to her

wellbeing. The GAL therefore felt granting SCJFS's motion for permanent custody was in

S.P.'s best interests.

{¶ 25} After taking the matter under advisement, the trial court granted SCJFS's

motion for permanent custody.

{¶ 26} Mother filed an appeal and the matter is now before this court for

consideration. She raises two assignments of error as follow:

I

{¶ 27} "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 OF MINOR CHILD AND SUCH

DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. "

II Stark County, Case No. 2022CA00164 8

{¶ 28} "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 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."

I, II

{¶ 29} We address Mother's assignments of error together. In her first assignment

of error, Mother argues SCJFS failed to show by clear and convincing evidence that

grounds existed for permanent custody and the trial court's decision granting permanent

custody is against the manifest weight of the evidence. In her second assignment of error,

Mother argues SCJFS failed to demonstrate that a grant of permanent custody to the

agency was in S.P.'s best interests and the finding that it was is against the manifest

weight of the evidence. We disagree.

Manifest Weight

{¶ 30} 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). In State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997), quoting Black's Law Dictionary 1594 (6th Ed.1990), the Supreme

Court of Ohio explained the following: Stark County, Case No. 2022CA00164 9

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 sic.)

{¶ 31} In weighing the evidence however, we are always mindful of the

presumption in favor of the trial court's factual findings. Eastley v. Volkman, 132 Ohio

St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517.

Permanent Custody Determination

{¶ 32} R.C. 2151.414(B)(1) states in relevant part that 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.

*** Stark County, Case No. 2022CA00164 10

(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 * *

*.

{¶ 33} 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), paragraph three of the

syllabus. See In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (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.

{¶ 34} 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 the parents. The section states in relevant part:

(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 Stark County, Case No. 2022CA00164 11

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.

***

(16) Any other factor the court considers relevant.

Best Interests

{¶ 35} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in

determining the best interest of a child: Stark County, Case No. 2022CA00164 12

(D)(1) In determining the best interest of a child at a hearing held

pursuant to division (A) of this section or for the purposes of division

(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415

of the Revised Code, the court shall 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 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 * * *;

(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.

Mother's Arguments Stark County, Case No. 2022CA00164 13

{¶ 36} Mother argues SCJFS failed to show grounds existed to grant SCJFS's

motion for permanent custody. Specifically, she argues that the "reasonable efforts" by

SCJFS prong has not been met. We find Mother's reasonable efforts argument

inapplicable to the permanent custody hearing in this matter.

{¶ 37} In 2007, the Supreme Court of Ohio found:

[E]xcept for some narrowly defined statutory exceptions, the state

must make reasonable efforts to reunify the family before terminating

parental rights. If the agency has not already proven reasonable

efforts, it must do so at the hearing on a motion for permanent

custody. However, the specific requirement to make reasonable

efforts that is set forth in R.C. 2151.419(A)(1) does not apply in an

R.C. 2151.413 motion for permanent custody.

{¶ 38} In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 4.

{¶ 39} The Court in C.F. further stated "[i]f the agency has not established that

reasonable efforts have been made prior to the hearing on a motion for permanent

custody, then it must demonstrate such efforts at that time." Id. at ¶ 43.

{¶ 40} According to the record in this matter the magistrate made reasonable

efforts findings on six occasions prior to the permanent custody hearing, specifically, May

3, 2021, July 8, 2021, July 22, 2021, December 28, 2021, January 27, 2022, and June

28, 2022. The same finding was made once before the case was dismissed and refiled.

Mother never objected to any of the magistrate's seven findings of best efforts, and the Stark County, Case No. 2022CA00164 14

trial court was not required to make a best efforts determination at the permanent custody

hearing.

{¶ 41} Moreover, the trial court determined that S.P. had been in the temporary

custody of SCJFS for twelve or more months of a consecutive twenty-two-month period.

For the purposes of the "twelve of twenty-two" determination contained in R.C.

2151.414(B)(1), that section states: "a child shall be considered to have entered the

temporary custody of an agency on the earlier of the date the child is adjudicated pursuant

to section 2151.28 of the Revised Code or the date that is sixty days after the removal of

the child from home." Emphasis added.

{¶ 42} SCJFS filed its dependency/neglect complaint on February 2, 2021. An

emergency shelter care hearing took place and S.P. was placed into the temporary

custody of SCJFS the same day. Sixty days from February 2, 2021 was April 3, 2021.

SCJFS filed its motion requesting permanent custody on June 21, 2022, well in excess

of 12 months. Accordingly, S.P. had been in the temporary custody of SCJFS for more

than twelve months of a consecutive 22-month period and Mother does not dispute that

fact.

{¶ 43} A finding that a child has been in the temporary custody of a public children-

services agency for twelve months of a consecutive twenty-two-month period alone, in

conjunction with a best interest finding, is sufficient to support the grant of permanent

custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118, 2008-Ohio-5458 ¶ 45.

{¶ 44} Here, the trial court also found granting SCJFS's motion for permanent

custody was in S.P.'s best interests. The GAL stated granting the motion for permanent

custody was in S.P.'s best interests as the child was not bonded with her parents, Parents Stark County, Case No. 2022CA00164 15

were neither consistent in their case plan objectives nor determined to meet the plan's

requirements. She further stated Parents had been given many opportunities, support,

and options to become and remain sober, engage in counseling, and find employment

but have failed to take advantage of the assistance extended to them. Conversely, the

GAL stated S.P. demonstrates delays and her foster placement provides for her every

need. Transcript of Permanent Custody Hearing (T.) 117-118. Case worker Hadden also

testified S.P. is not bonded with Parents, and is often distressed and frustrated when

visiting with Parents. T. 99. Both Hadden and the GAL testified permanent custody would

be in S.P.'s best interest. T. 100, 118. S.P.'s foster mother stated she was willing to adopt

S.P. T. 118-120.

{¶ 45} Upon review, we find sufficient clear and convincing evidence to support the

trial court's decision to grant appellee permanent custody of the children, and do not find

any manifest miscarriage of justice.

{¶ 46} Assignments of Error I and II are overruled.

{¶ 47} The judgment of the Court of Common Pleas of Stark County, Ohio, Family

Court Division, is affirmed.

By King, J.,

Gwin, P.J. and

Delaney, J. concur.

AJK/rw