[Cite as In re X.S.R.S., 2024-Ohio-1636.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
IN RE: :
X.S.R.S., et al. : CASE NO. CA2023-12-128
: OPINION 4/29/2024 :
:
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS JUVENILE DIVISION Case Nos. JN2021-0117, JN2021-0118, JN2021-0226
Garrett Law Offices, and Dawn S. Garrett, for appellant.
Andrew J. Brenner, for appellee, Father.
Michael T. Gmoser, Butler County Prosecuting Attorney, and John C. Heinkel, Assistant Prosecuting Attorney, for appellee, Butler County Children Services.
Amy R. Ashcraft, for CASA.
Legal Aid Society of Southwest Ohio, LLC, and Jamie Landvatter, for Guardian ad litem.
PIPER, J.
{¶ 1} Appellant ("Mother"), the mother of X.S.R.S. ("Jane"), K.S.S.G. ("Karen"), Butler CA2023-12-128
and J.R.S. ("John"),1 appeals the decisions of the Butler County Court of Common Pleas,
Juvenile Division, granting permanent custody of the children to the Butler County
Department of Job and Family Services ("the Agency"). For the reasons that follow, we
affirm the juvenile court's decision.
I. Facts and Procedural History
{¶ 2} This case involves three minor children—Karen, born December 10, 2009;
Jane, born December 12, 2012; and John, born August 14, 2021. "Father" is the
biological father of Jane and John, and he participated in the juvenile court proceedings.2
Karen's biological father did not participate, and his identity is unknown.
{¶ 3} In January 2021, the Agency received a report that the girls had been
sexually abused by Father. The Agency immediately filed a complaint alleging that Jane
and Karen were dependent and abused children and asking for emergency temporary
custody of them, which the juvenile court granted.3 The girls were removed from the
home and placed in a foster home. On May 10, 2021, the girls were adjudicated
dependent, by stipulation after the allegations of abuse were withdrawn. The following
August, two days after he was born, the Agency filed a dependent-child complaint for
John and requested temporary custody of him, which the court granted. John was placed
in the same foster home as his sisters. In October 2021, John was adjudicated
dependent. Two guardians ad litem ("GAL" and "Co-GAL") were appointed for the
children, as well as a court appointed special advocate ("CASA").
1. "Jane," "Karen," and "John" are pseudonyms adopted in this opinion for purposes of privacy and readability. See In re D.P., 12th Dist. Clermont Nos. CA2022-08-043 and CA2022-08-044, 2022-Ohio- 4553, ¶ 1, fn. 1.
2. Father did not appeal and is not a party in this appeal.
3. The Agency refiled the complaints a few months later in the present cases. The magistrate took judicial notice of everything in the original cases.
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{¶ 4} A case plan was developed for the family with the goal of reunification. But
in the months that followed, it became apparent to the Agency that the parents were
unlikely to ever provide adequate care for the children. Finally, on April 20, 2022, the
Agency moved for permanent custody of the two girls, alleging that they had been in its
temporary custody for 12 or more months of a consecutive 22-month period and that
neither child could, nor should, be placed with either parent within a reasonable time. Six
months later, on October 22, the Agency moved for permanent custody of John, based
on the same allegations.
{¶ 5} A permanent-custody hearing for the children was held before the
magistrate over five days in February, March, April, and May 2023. Mother and Father
testified as well as the children's foster mother, therapists who worked with the family and
the girls, the family's caseworker, and others. Documents were also admitted into
evidence, including a report and recommendation from the GALs and a report and
recommendation from the CASA. The magistrate also conducted in camera interviews
with each girl.
{¶ 6} The testimony showed that after their removal, the girls continued to reveal
concerning information about their lives with Mother and Father. Both girls consistently
talked about domestic violence, physical abuse by both parents, and sexual abuse and
sex trafficking of the girls by Father. A no-contact order was entered for Father, and the
girls had supervised visits with Mother. In the summer of 2021, it was discovered that at
the conclusion of these visits, when she was hugging the girls, Mother would sometimes
whisper comments to them about the case. This was how the girls learned that Mother
was expecting a baby with Father. This news greatly upset the girls—that Mother had
continued to have a relationship with Father despite knowing that they had accused him
of sexually abusing them. It was then that the girls said they no longer wanted to visit
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with Mother. Even more upsetting to the girls was later learning that Mother had named
the baby after Father.
{¶ 7} Witnesses testified that Mother had engaged in the case-plan services but
that there appeared to be no change in her insight and ability to parent the children
appropriately. Mother did not acknowledge the existence of the problems in the home
that prompted the children's removal. She initially said she did not believe the girls'
allegations of sexual abuse, then said that she did believe them but wanted proof. Father
had admitted no wrongdoing at all. Mother has continued to engage in behavior
detrimental to her children's well-being. It was discovered that Mother was surreptitiously
communicating with the girls at family therapy sessions. Mother was cautioned many
times to stop, because it was having a negative effect on the girls. But she continued to
do so when she thought that she would not be caught. Ultimately, Mother's behavior
resulted in family therapy ending, as more harm than good was occurring. And while
Mother said that she had ended her relationship with Father, the caseworker, the CASA,
and the GALs all observed his vehicle parked outside Mother's apartment on many
occasions.
{¶ 8} The reports filed by the CASA and the GALs echo much of the witnesses'
testimony. The CASA and the GALs had observed nothing from Mother that indicated
she had gained any insight during the two years since the children were removed. Mother
displayed no ownership, accountability, or remorse for her actions. Nor did she
acknowledge that there were any problems in the home. They agreed that Mother
continued to demonstrate behaviors detrimental to her children's well-being. Neither the
CASA nor the GAL believed that Mother and Father had separated.
{¶ 9} The reports both stated that Karen and Jane felt safe and happy in their
foster home and that they had asked if they could stay there permanently. By all
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accounts, John was well taken care of and was thriving and meeting all developmental
milestones. He showed a tight bond with his foster parents and his sisters. The GALs
said that Karen and Jane had been very clear that they do not want to return to Mother's
care and had expressed a fervent desire to remain where they are to be adopted by their
foster parents.
{¶ 10} Both the CASA and the GALs recommended that the court should grant the
Agency permanent custody of the children. The GALs' report concluded that Mother has
continuously and repeatedly failed to substantially remedy the conditions that caused the
children to be removed from the home. The two GALs said that they were not confident
that the children would be safe in Mother's care. They concluded that the children needed
the permanency and stability that a grant of permanent custody to the Agency would
provide. The GALs did not believe that this goal could be achieved any other way.
{¶ 11} On July 12, 2023, the magistrate entered decisions (one for each child)
recommending that permanent custody be granted to the Agency. The same day, the
juvenile court adopted the decisions and recommendations. Mother filed objections. On
November 2, 2023, after a hearing, the juvenile court overruled her objections.
{¶ 12} Mother appealed.
II. Analysis
{¶ 13} Mother assigns the following error to the trial court:
{¶ 14} THE TRIAL COURT'S DECISION TO GRANT THE AGENCY
PERMANENT CUSTODY OF THE CHILDREN IS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶ 15} In her sole assignment of error, Mother argues that granting permanent
custody to the Agency was unnecessary and not in the best interest of the children
because she has addressed the conditions that led to their removal. Specifically, Mother
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claims that she has cut ties with Father, has independent income and housing, and would
ensure that the children are safe and had what they needed, including counseling. She
also asserts that she would protect her daughters.
A. The Statutory Framework and Standards of Review
{¶ 16} "R.C. 2151.414 sets out specific findings a juvenile court must make before
granting an agency's motion for permanent custody of a child." (Citation omitted.) In re
A.M., 166 Ohio St.3d 127, 2020-Ohio-5102, ¶ 18. "Before a natural parent's
constitutionally protected liberty interest in the care and custody of his child may be
terminated, the state is required to prove by clear and convincing evidence that the
statutory standards for permanent custody have been met." (Citation omitted.) In re
M.G., 12th Dist. Brown No. CA2022-11-010, 2023-Ohio-1316, ¶ 44.
{¶ 17} As relevant here, under R.C. 2151.414(B)(1), a court must make two
findings. One is that a grant of permanent custody is in the child's best interest, and the
other finding is that at least one of the circumstances in R.C. 2151.414(B)(1)(a) through
(e) applies, which includes that the child has been in the temporary custody of a public
children services agency for 12 or more months of a consecutive 22-month period, R.C.
2151.414(B)(1)(d).
{¶ 18} The sufficiency-of-the-evidence and manifest-weight-of-the-evidence
standards apply in cases involving a juvenile court's decision under R.C. 2151.414 to
award permanent custody of a child and to terminate parental rights. In re Z.C., Slip
Opinion 2023-Ohio-4703, ¶ 1, 11. Sufficiency and manifest weight are distinct concepts.
Id. at ¶ 13, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 10. When
assessing sufficiency, an appellate court should uphold a trial court judgment if the
evidence legally supports the jury verdict. Bryan-Wollman v. Domonko, 115 Ohio St.3d
291, 2007-Ohio-4918, ¶ 3. But even if a judgment has sufficient evidence, the appellate
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court may find it contrary to the manifest weight of evidence. Eastley at ¶ 12. When
reviewing for manifest weight, the court considers witness credibility, reasonable
inferences, and whether the finder of fact clearly lost its way in resolving conflicts in the
evidence resulting in a manifest miscarriage of justice. 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. Deference should be given to the trial court's findings because
the trial judge had the opportunity to observe the witnesses and assess their credibility.
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). If the evidence permits
multiple interpretations, the reviewing court should prefer an interpretation consistent with
the verdict and judgment. Id. at 80, fn. 3.
B. Best-Interest Analysis
{¶ 19} R.C. 2151.414(D)(1) sets out a nonexhaustive list of factors the court must
consider in determining the best interest of a child:
(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 * * *;
(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.
A court may also consider additional relevant factors in determining a child's best interest.
In re A.J., 12th Dist. Clermont No. CA2018-08-063, 2019-Ohio-593, ¶ 24. No single factor
carries greater weight, nor is any factor decisive. In re S.H., 12th Dist. Butler Nos.
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CA2020-02-023 and CA2020-02-024, 2020-Ohio-3499, ¶ 30; In re M.G., 12th Dist.
Warren No. CA2020-10-070, 2021-Ohio-1000, ¶ 29.
{¶ 20} The magistrate's decision here, adopted by the juvenile court, considered
each of the statutory factors and made related findings of fact.
(a) The children's interactions and interrelationships
{¶ 21} As to the children's relationships with others, the magistrate found that
observations of Mother's supervised visits with Karen and Jane "did not reveal a close
bond between the girls and their Mother." After the girls learned of Mother's pregnancy,
they began to oppose further contact with Mother due to her ongoing relationship with
Father, whom they accused of abuse. When Mother named the baby (John) after Father,
the girls refused contact with her. By the time the permanent-custody proceedings began,
the girls had had no contact with Mother for about a year. Family therapy had not been
successful in healing the relationship. Mother says that her children love her and want to
be with her and that they are happy to see her, but the weight of the evidence suggests
otherwise. Mother does not dispute the findings that the girls have thrived in their foster
placement, that "[t]hey appear very bonded with their foster family, with each other, and
with their baby brother [John] (who is placed in the same home)."
{¶ 22} Although Mother continued to have visits with John, those visits never
extended beyond supervised, limited contact. Although the magistrate found that John
appeared to enjoy his time with them, the magistrate also found, based on the testimony,
that he had demonstrated emotional distress that was believed to be associated with the
visits. Furthermore, John had spent his entire life in foster care with his sisters in a home
where he was bonded, settled, and cared for, and with foster parents interested in
adopting him and his sisters.
{¶ 23} The evidence shows the lack of a bond between the children and Mother.
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It also shows that the children are bonded with their foster parents. Accordingly, this
factor favors granting permanent custody to the Agency. Mother does not challenge any
of these findings, and the weight of the evidence supports them.
(b) The children's wishes
{¶ 24} As to the children's wishes, the magistrate found, based on the GALs' report
and his own in camera interview, that it was "clear [that] the wish and desire" of the two
girls was to be placed in the permanent custody of the Agency. As for John, due to his
young age, the magistrate did not interview him, but the magistrate found that the GALs
recommended placing him in the permanent custody of the Agency.
{¶ 25} Mother states in her brief that she "knows her children to love her and want
to be with her," but the weight of the evidence contradicts this. We particularly note the
testimony of Dr. Kim Rosenzweig, the girls' therapist. Dr. Rosenzweig testified that in
January 2023 she wrote a letter to the Agency addressing the reunification of the girls
with Mother and Father. She noted that Jane had said "multiple times" that she did not
want to return to their custody and that Karen had said her "biggest fear" was going back
to their home. In the letter, Dr. Rosenzweig strongly encouraged the Agency to consider
the children's wishes in their placement. Rosenzweig testified that her opinion remained
unchanged.
{¶ 26} Mother does not dispute the magistrate's findings based on his own
interviews and the GALs' report. The children's wishes found by the magistrate are
supported by the weight of the evidence and favor granting permanent custody to the
Agency.
(c) Custodial history
{¶ 27} Regarding the custodial history of the children, the magistrate found that the
two girls were removed from their parents' custody on January 22, 2021, and have been
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in the Agency's custody ever since. They were adjudicated as dependent on May 10,
2021. The magistrate found that when the Agency moved for permanent custody on April
20, 2022, the girls had been in the Agency's temporary custody for 12 or more months of
a consecutive 22-month period. As for the youngest child, John, he was removed on
August 16, 2021, and was adjudicated dependent on November 5, 2021. He has
remained in the Agency's custody since his removal from the home. The Agency filed
the motion for permanent custody of John on October 24, 2022. The magistrate found
that by then, John had been in the Agency's temporary custody for 12 or more months of
a consecutive 22-month period.
{¶ 28} Mother does not challenge any of these findings. We conclude that these
facts reflect the evidence and support granting permanent custody to the Agency.
(d) Legally secure permanent placement
{¶ 29} The magistrate found that granting permanent custody to the Agency was
the only way that the children can be provided legally secure permanent placement.
Courts have generally interpreted the phrase "legally secure permanent placement" to
mean "a safe, stable, consistent environment where a child's needs will be met." In re
M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56; see also In re T.J., 2021-
Ohio-4085, 180 N.E.3d 706, ¶ 59 (6th Dist.) (quoting the same). The magistrate found
that the relationship between the girls and Mother was "irretrievably broken." The girls
reported that they had been sexually abused, trafficked, and exploited by Father, and
physically abused by Mother. Mother said that she believed the girls' claims of sexual
abuse, but her actions belied that belief. Even after the girls reported the abuse, she
remained in a relationship with Father for some time. Indeed, she bore his child and
named the baby after him. The magistrate also noted that significant evidence was
presented showing that Mother had remained in a relationship with him, despite her
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claims to the contrary. In sum, the magistrate stated, "[t]hose acts clearly demonstrate
with whom mother's loyalties lie."
{¶ 30} This is the only factor that Mother truly disputes. Mother contends that the
conditions that led to removal have been remedied because she has removed Father
from the home, has a stable income and housing, and can meet the needs of the children.
The weight of the evidence, though, supports the magistrate's findings.
{¶ 31} The caseworker's testimony is especially pertinent. She testified that the
children could not be returned to the parents because "there has not been * * * progress
with ensuring that the girls are going to be, and [John], * * * that they're going to be safe.
[The parents] have continued to deny that there were any issues in the home and because
of that denial have made very little progress in the case plan services that they were * * *
recommended to complete." The caseworker testified about two reports from the
Mayerson Center at Cincinnati Children's Hospital, based on their interviews with the girls,
discussing the physical and sexual abuse. Karen had disclosed an incident at a party
(not in Mother's home) where a man "took her into a bedroom and had touched her on
her vagina underneath her clothing." Karen said that she had told Mother about this but
that the man was still permitted to come to Mother's home later and have access to the
girls. Mother told the girls just to lock their bedroom doors. Mother has never
acknowledged believing Karen about this incident. The caseworker also testified that
Karen had said that she would be taken to parties or social gatherings and that Father
"would offer her up to men in exchange for money."
{¶ 32} The evidence shows that Mother has gone "back and forth" regarding
whether she believes that the girls were sexually abused. The caseworker's opinion was
that there had been no improvement in Mother's ability to protect the children and that
she was "very concerned" about Mother's ability to do so. Even though the girls accused
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Father of physical and sexual abuse, Mother continued to live with him until shortly before
John was born. After John was removed from the home, they resumed living together,
claiming to have separated again sometime later. But the caseworker testified that she
had seen one or more of the vehicles driven by Father at Mother's residence "fairly
frequently." Moreover, the caseworker identified a traffic ticket issued to Father that was
dated 11 months after he claimed to have moved out, and it listed his address as Mother's.
{¶ 33} The caseworker described the three children as "very, very bonded" in their
foster home and also noted that both girls were thriving there. She said that the Agency
had no concerns about the home. The foster mother testified that, if the opportunity arose,
she and her husband would like to adopt all three children.
{¶ 34} Mother says that she will protect the girls in the future, but her history
suggests otherwise. As the magistrate found: "The evidence is clear that mother was
aware, before the case was filed, that at least one of the girls had concerns about being
inappropriately touched by [Father]. At that point, [Mother] made some choices. She did
not contact the authorities. She did not confront [Father]. She, instead, told her daughters
to lock the door to their bedroom. She tries to simultaneously protect her girls and [Father]
* * *."
{¶ 35} When assessing evidence, the finder of fact determines witness credibility
and assigns weight to their testimony. In re J.F., 12th Dist. Butler No. CA2023-06-065,
2023-Ohio-4244, ¶ 25 (concluding that "[a]lthough Mother presented some favorable
testimony at trial, * * * the juvenile court did not err in concluding that it was outweighed
by other evidence of Mother's severe and ongoing mental health problems and her
inability to provide appropriate care to [the child]"). We see no reason here to disturb the
magistrate's assessment of the evidence.
{¶ 36} Based on the evidence, we conclude that the magistrate's findings
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regarding the children's need for legally secure permanent placement support granting
permanent custody to the Agency.
(e) The factors in R.C. 2151.414(E)(7)-(11)
{¶ 37} The factors in R.C. 2151.414(E)(7) through (11) relate to a parent's criminal
convictions or guilty pleas for offenses against the child, withholding medical treatment or
food, endangering the child due to substance abuse, abandonment, and involuntary
termination of parental rights regarding the child's sibling. In re A.M., 166 Ohio St.3d 127,
2020-Ohio-5102, at ¶ 19. The magistrate here made no findings related to these factors.
{¶ 38} In sum, the magistrate found that Mother has failed continuously and
repeatedly to substantially remedy the conditions that caused the children to be placed
outside of their home. See R.C. 2151.414(E)(1). Although Mother has participated in
case-plan services, there seems to be no improvement in her ability to parent the children
appropriately. Indeed, Mother initially denied the existence of the problems in the home
that led to the children's removal. Her actions still indicated either disbelief or lack of
understanding regarding what had happened to the girls. During visits with the girls,
Mother was instructed not to discuss the case, but she did so surreptitiously, and
consequently her relationship with the girls suffered. Mother claimed to have ended her
relationship with Father, yet after their reported separation, Father's vehicle was seen
parked outside Mother's apartment multiple times.
{¶ 39} Mother contends that the juvenile court lacked a basis for finding abuse and
for refusing to return custody of the children to her, even after the abuse allegations were
withdrawn and she actively participated in case-plan services. Testimony from multiple
witnesses confirmed that the girls consistently alleged abuse. And the evidence showed
that an investigation is ongoing into the allegations that Father trafficked the girls.
Moreover, completing case-plan requirements does not automatically preclude granting
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permanent custody to a social services agency. In re S.M., 12th Dist. Clermont No.
CA2015-01-003, 2015-Ohio-2318, ¶ 24. This is because "[a] case plan is merely a means
to a goal and not a goal in itself." In re S.U., 12th Dist. Clermont No. CA2014-07-047,
2014-Ohio-5166 ¶ 35. The focus lies in whether the parent has substantially addressed
the concerns that led to the child's removal. In re S.M. at ¶ 24. The evidence here clearly
and convincingly demonstrates that the problems that led to the children's removal have
not been substantially resolved.
C. The "12 of 22" Findings
{¶ 40} Mother has not challenged the juvenile court's determination that under
R.C. 2151.414(B)(1)(d), the children have been in the temporary custody of the Agency
for 12 or more months of a consecutive 22-month period. For this reason, we need not
consider the issue further. See In re J.N.L.H., 12th Dist. Butler No. CA2022-06-063,
2022-Ohio-3865, ¶ 26.
{¶ 41} We note simply that the record here establishes that the magistrate's "12 of
22" finding was supported for each child. The Agency's motions for permanent custody
of Karen and Jane were filed on April 20, 2022, which is about 13 months after they
entered the Agency's custody, as defined by R.C. 2151.414(D). As for John, the Agency's
motion for permanent custody of him was filed on October 24, 2022, which is just over 12
months after he entered the Agency's custody.
III. Conclusion
{¶ 42} In light of the foregoing, we conclude that the juvenile court did not err by
determining that it was in the children's best interest to grant permanent custody to the
Agency. As such, we find that the juvenile court's decision to grant permanent custody
of the children to the Agency was supported by clear and convincing evidence and was
not against the manifest weight of the evidence. Mother's sole assignment of error is
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overruled.
{¶ 43} The juvenile court's judgments are affirmed.
S. POWELL, P.J., and HENDRICKSON, J., concur.
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