In re D.J. , 2022 Ohio 4195 ( 2022 )

[Cite as In re D.J., 2022-Ohio-4195.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN THE MATTER OF: D.J. : JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 22CA07
:
:
:
:
: OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, case
no. 221-2069
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: November 22, 2022
APPEARANCES:
For Appellee Agency: For Appellant Mother:
ASHLEY JOHNS MARY LOU RANNEY
Knox Co. DJFS 401 W. High St.
117 East High St. Suite 7
Mount Vernon, OH 43050 Mount Vernon, OH 43050
[Cite as In re D.J., 2022-Ohio-4195.]
Delaney, J.
{¶1} Defendant-Appellant M.J. (“Mother”) appeals from the April 21, 2022
Judgment Entry of the Knox County Court of Common Pleas, Juvenile Division, granting
custody of her children D.J. and J.J. to the Knox County Department of Job and Family
Services (“Agency”).
{¶2} The instant case is related to, but not consolidated with, In the Matter of:
J.J., 5th Dist. Knox No. 22CA08.
FACTS AND PROCEDURAL HISTORY
{¶3} Mother and Father have three biological children: T.J (age 16, in a Planned
Permanent Living Arrangement which is not at issue in this appeal); D.J. (DOB
8/31/2006); and J.J. (DOB 4/26/2011).1 “The children” will henceforth refer to D.J. and
J.J.
{¶4} This case arose on August 3, 2016, when the Agency filed a motion for ex
parte temporary custody of the children, which was granted. The matters have twice
been refiled due to the statutory time frame for case completion, but the children have
remained in the continuous custody of the Agency since August 3, 2016. On or around
December 22, 2016, the Agency learned of alleged sexual abuse of the children that
occurred while in Mother’s custody. The children were taken to Nationwide Children’s
Hospital and disclosed physical and sexual abuse.
1
Father is not a party to this appeal. He was never added to the case plan due to his
incarceration and has made no effort to contact the Agency regarding the children. He
has not visited with the children since before they were removed in 2016 and has not
requested visitation.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶5} On November 8, 2018, the Agency filed a motion to dismiss the initial cases
because the time frame for completion had elapsed pursuant to R.C. 2151.353(G).
Complaints were refiled the same day. Those cases proceeded to adjudication, and on
January 19, 2019 the trial court issued a judgment entry memorializing its decision but
failing to comply with R.C. 2151.28(L). This Court reversed and remanded the judgment
of the trial court, directing the trial court to issue findings of fact and conclusions of law in
compliance with R.C. 2151.28(L). Matters of T.J., 5th Dist. Knox No. 19CA02, 2019-Ohio-
3626, ¶ 11.
{¶6} On June 24, 2021, the Agency again dismissed and refiled the cases to
maintain compliance with R.C. 2151.353(G) as trial court case numbers 221-2069 and
221-2070, the cases at issue in the instant appeal. The complaints alleged abuse and
dependency.
{¶7} On August 19, 2021, the children were adjudicated dependent by
agreement of the parties, with a stipulated finding that “the minor children have suffered
physical and sexual abuse and their behaviors in response to that trauma create a
significant safety risk, [Mother] was not identified as a perpetrator of abuse, however,
despite significant therapeutic interventions, the children cannot safely reside together in
[Mother’s] home.” The children remained in the Agency’s temporary custody following a
dispositional hearing on September 23, 2021.
{¶8} The Agency filed a motion for permanent custody on October 27, 2021, and
a hearing was held on March 18, 2022. On April 21, 2022, the trial court granted the
Agency’s motion via judgment entry.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶9} The following evidence is adduced from the record of the permanent
custody hearing.
{¶10} The Agency has received reports about Mother since 2003, which predates
the birth of the children. The instant case arose in 2016 from allegations of an unsafe
home environment in Knox County where Mother resided with Grandmother and the
children. Upon investigation, the home was found to contain excessive trash and
cockroaches, and the children struggled to maintain basic hygiene.
{¶11} Three different caseworkers have served as the primary caseworker in this
matter; one—Parks—testified at the evidentiary hearing. Parks was the primary
caseworker for less than four months.
{¶12} At removal, J.J. was 5 years old, D.J. was 9 years old, and their brother T.J.
was 11 years old. The three siblings were placed together in one foster home along with
their cousin (“Cousin”). The siblings later disclosed sexual abuse, some of which was
allegedly perpetrated by Cousin, and Cousin was relocated. Forensic interviews of the
siblings were completed at Nationwide Children’s Hospital in January 2017 and sexual
abuse allegations were substantiated as follows: sexual abuse by Cousin against all three
siblings; physical abuse of T.J. and D.J. by Ricki Mathews; sexual abuse of D.J. by Father;
and sexual abuse of T.J. by John Campbell.
{¶13} After removal, Mother had supervised visits with the children at the Agency.
Parks supervised at least one of the visits, and the guardian ad litem (“GAL”) supervised
a visit in December 2017. Mother was appropriate with the children during these visits.
{¶14} Mother obtained an apartment and had supervised visitation with the
children there, progressing to unsupervised overnight visits. One condition of Mother’s
[Cite as In re D.J., 2022-Ohio-4195.]
contact with the children required her to prohibit access to the internet due to the
children’s proclivity to seek out inappropriate sexual material. At the home visit, however,
Mother provided tablets and cell phones, and the children used the devices to access
pornography online. In the Agency’s estimation, Mother failed to demonstrate that she
understood the importance of limiting the children’s access to the internet, and of the need
to set boundaries, to prevent the children from offending against each other sexually.
Mother’s in-home visitation was terminated for this reason.
{¶15} After the beginning of the Covid pandemic, Mother began visitation with the
children at a park. Mother was evicted from her apartment allegedly for lying about her
custody status with the children. After the eviction, Mother lived with a friend for a few
months.
{¶16} Mother now lives with her boyfriend Austin, Austin’s mother, and Austin’s
uncle; they have lived in the apartment for six months and Mother and the other adults
pay rent and utilities for the apartment. Austin does not have a criminal record but was a
foster child due to substantiated abuse against him by his mother’s boyfriend. The
Agency has serious concerns about Austin’s mother because of her history of abuse and
neglect of Austin. Austin’s mother lives with Mother in the apartment.
{¶17} The Agency has visited the apartment several times and Parks testified that
it is relatively clean, although it is small for four adults. The G.A.L. has not visited the
apartment. Mother testified that if she obtains custody of the children, she and the other
adults have pledged to share rooms so that one child would have a room of his or her
own. Mother also testified she will find a bigger place to live but has not applied for one
as of the date of the evidentiary hearing.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶18} Mother’s visitation with D.J. and J.J. presently takes place for one hour,
every two weeks, at a local mall. Mother schedules the visits directly with the children’s
foster families and does not go through the Agency. The children have not visited Mother
at the apartment.
{¶19} Mother’s case plan required her to obtain a mental health assessment and
follow all recommendations. Parks testified that Mother has neither obtained the
assessment nor attended counseling; Mother believes she completed a mental health
assessment several years ago and a psychological evaluation at the Agency’s request.
Mother believed her assessment was at BHP, but didn’t know whether BHP made any
further recommendations, and assumed BHP sent a report to Agency. The GAL obtained
a release from Mother, but BHP did not provide any records. In short there is no evidence
Mother completed a mental health assessment. The GAL recommended that Mother
engage in counseling to help her understand the children’s trauma and their current
needs, but Mother did not follow the recommendation.
{¶20} Mother does not remember all the requirements of the case plan but
believes she has completed them. She wanted the Agency to facilitate “family
counseling,” but family therapy was not recommended by mental health professionals
until the children were willing to discuss their past trauma.
{¶21} Mother successfully completed parenting education and consistently
attended available visitation with the children. Mother does not have her own vehicle but
found transportation to enable her to attend visitation; she declined vouchers from the
Agency and met this need herself.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶22} Mother has maintained employment for the past five years and has the
financial means to care for the children. Mother provides direct support for individuals
with disabilities, including helping them with independent living skills, and is certified in
CPR. Mother works approximately 30 hours per week.
{¶23} Mother requested that the Agency place the children with her brother
(“Brother”) after they were removed from the first foster home and separated. The Agency
rejected Brother as a possibility because Brother has custody of Cousin, the individual
who allegedly perpetrated sexual abuse against the children. Brother also struggles to
maintain stable housing, making him unsuitable for placement even after Cousin is
emancipated. Brother has not filed anything with the trial court seeking custody of either
child.
{¶24} D.J. and J.J. currently reside in separate foster homes.2
{¶25} J.J. was diagnosed with ADHD and PTSD after her removal from the home
and has worked with three different therapists. Her current therapist has worked with her
for five months and indicated J.J. has not made progress, but the therapist will continue
to attempt to build trust. J.J. has cognitive delays, unhealthy boundaries, and a lack of
knowledge about how to maintain her own safety. She told peers at school she enjoys
inappropriate sexualized behavior, and will climb into the lap of a complete stranger
unless redirected. Parks, the GAL, and J.J.’s therapist agree that she requires constant
supervision to maintain her boundaries and prevent inappropriate interaction. J.J.
2
The children’s older brother T.J. has lived at an independent living facility two hours
away for the past year, and has not had visits with Mother or the children. T.J. has
behavioral issues and a pending delinquency matter; Mother does not have transportation
to enable her to visit with T.J. and the Agency has not provided transportation.
[Cite as In re D.J., 2022-Ohio-4195.]
struggles with school and has an IEP. J.J. is bonded with Mother but not with her siblings.
She changes her mind frequently about where she would like to live, although presently
her preferences, in order, are with Mother, Brother, or with her foster family.
{¶26} D.J. is generally a happy child and does well in school. He is excited to visit
with Mother but does not ask about his siblings. D.J. struggled in his original foster home
and disclosed sexual abuse there, but is bonded with his current foster family. His
behavior deteriorated after the death of his foster mother, but he is back on track again.
He is impulsive and has engaged in sexualized behaviors which have now almost
stopped. He attends counseling but does not talk about past trauma; he has recanted
then restated allegations of abuse. Mental health professionals recommended continued
therapy. D.J. would like to live with his Mother, or else with his foster family.
{¶27} The children’s past trauma and history of sexual abuse has made family
counseling and living together in one household inadvisable. Although the Agency
planned to engage Mother and the children in family counseling, mental health
professionals recommended against it because the children are not open about their past
trauma. They also recommended against allowing the siblings to reside in the same
household due to their sexualized behaviors. J.J. is unable to protect herself and requires
constant supervision; D.J. also lacks boundaries.
{¶28} Mother has not had custody of the children since their initial removal on
August 3, 2016. The initial concerns at removal involved the physical conditions of
Mother’s home and the children’s hygiene, but additional concerns of sexual and physical
abuse arose during the pendency of the case. Mother denies knowledge of the physical
and sexual abuse, and says she would have intervened if she would have known. Despite
[Cite as In re D.J., 2022-Ohio-4195.]
the Agency telling her the children disclosed abuse, Mother told the trial court she was
unaware of the identity of any alleged perpetrator and of the details of the abuse until she
read reports from Nationwide Children’s Hospital. The Agency and the GAL remain
concerned about Mother’s ability to care for the children due to the need for constant
supervision. The Agency and the GAL also believe Mother does not understand the need
for constant supervision to prevent future abuse or inappropriate sexualized behaviors.
{¶29} The motion for permanent custody was premised upon Mother’s inability to
set boundaries for the children; her apparent lack of understanding of the children’s
needs; and her lack of appropriate housing due to inappropriate adults who reside in
Mother’s apartment.
{¶30} Mother stated that the number of adults living in the apartment will help her
supervise the children; she told the trial court she would “do the best to keep an eye on
them” if they return home. She stated the children will not have internet access and she
has previously grounded them for inappropriate behavior. She stated the Agency has not
given her an opportunity to show that she is able to care for the children. If the trial court
does not permit the children to reside in the same household, Mother stated that Brother
would be willing to care for the other child.
{¶31} The GAL recommended that the trial court grant the Agency’s motion for
permanent custody.
{¶32} The trial court found the children have been in the temporary custody of the
Agency for twelve or more months of a consecutive twenty-two-month period.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶33} By an Opinion and Judgment Entry filed April 21, 2022, the trial court
granted the motion of the Agency for permanent custody of D.J. and J.J. Mother now
appeals from that Opinion and Judgment Entry.
{¶34} Mother raises four assignments of error:3
ASSIGNMENTS OF ERROR
{¶35} “I. THE TRIAL COURT ERRED IN RELYING UPON THE TESTIMONY OF
THE RECORDS CUSTODIAN OF THE AGENCY TO THE EXTENT THAT THE
TESTIMONY CONTAINED INADMISSIBLE HEARSAY.”
{¶36} “II. THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY TO THE
AGENCY WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND WAS NOT IN THE BEST
INTEREST OF J.J. AND D.J.”
{¶37} [“III.] THE TRIAL COURT PLAINLY ERRED WHEN IT FAILED TO APPLY
AND ENFORCE R.C. 2151.218(A) AND (I) WITH RESPECT TO THE GUARDIAN AD
LITEM FOR J.J. AND D.J.”
{¶38} [“IV.] THE TRIAL COURT PLAINLY ERRED BY ADMITTING THE
TESTIMONY OF THE GUARDIAN AD LITEM.”
3
Mother’s assignments of error are numbered I., II., IV., and V. in her brief. There are
four total assignments of error and III. has been omitted or mislabeled. In this opinion
and the related case, we have re-numbered the four assignments of error in consecutive
order.
[Cite as In re D.J., 2022-Ohio-4195.]
ANALYSIS
I.
{¶39} In her first assignment of error, Mother argues the trial court should not have
permitted the Agency’s records custodian to testify to the contents of its records regarding
the family’s history with the Agency. We disagree.
{¶40} During the permanent custody hearing, the Agency called Danielle Swindell
as a witness. Swindell’s title is Social Services Administrator; she is the Agency’s keeper
of records. After Swindell was sworn, the following conversation was had:
* * * *.
[Counsel for the Agency]: And are you familiar with the [J.]
case?
[Swindell]: I am.
[Counsel for the Agency]: Okay. And are you also the
agency’s keeper of records?
[Swindell]: Correct.
[Counsel for the Agency]: Okay. Can you describe for the
Court what the history looks like with the agency’s involvement with
the [J.] family?
[Mother’s Counsel]: I’m going to object, Your Honor.
THE COURT: Based on?
[Mother’s Counsel]: The objection is hearsay and it is going
to be an ongoing objection because the testimony is going to come
from documents. I realize she is a keeper of the record and so by
[Cite as In re D.J., 2022-Ohio-4195.]
being keeper of the record things can come in. However, I want it on
the record that I’m objecting under the hearsay and it will be an
ongoing objection to any testimony off the records by the agency.
THE COURT: How does that not fit into the records
exception?
[Mother’s Counsel:] I said I know she is going to be able to
bring things in. I will pull this together later on.
THE COURT: You are going to pull what together later on?
[Mother’s Counsel]: I’m sorry, I just wanted it on the record.
You can go ahead and overrule it.
THE COURT: I need to know what the specific objection is.
So nothing has been—a blanket objection to anything that she is
testifying to out of a record that is kept in the normal course of
business of JFS?
[Mother’s Counsel]: Yes.
THE COURT: Then you know that I’m going to overrule that,
if you are acknowledging that it fits into an exception of hearsay.
[Mother’s Counsel]: Yes, Your Honor.
THE COURT: Okay. Then I will overrule that objection.
[Agency Counsel], you may reask the question just so we are
back on the same page.
* * * *.
T. 38-40.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶41} Swindell then testified that the Agency’s history with the family dates to
2003. There have been 23 reports of abuse, neglect, and dependency, with 5 reports
“substantiated,” 2 reports “indicated,” and 3 reports unsubstantiated. The remaining
reports are information and referrals without outcomes. The Agency had an ongoing case
plan with Mother including mental health assessments, counseling, foster care services,
and facilitation of visitation. Concerns arose during Mother’s contact with the children
including access to cell phones, pornography, and sexual material. Swindell catalogued
the Agency’s history with Mother’s boyfriend Austin, noting Austin was a victim of
substantiated neglect by his mother; the mother also lived in the apartment with Austin
and Mother. Austin was sexually abused by his mother’s boyfriend. Therefore, the
Agency would not find Mother’s apartment to be a suitable residence for the children in
the instant case. Swindell noted Mother has declined Agency vouchers for transportation
and found her own transportation to visitation.
{¶42} The Agency’s counsel then asked Swindell whether she had concerns
regarding Mother’s ability to parent the children, and Swindell replied that she does not
believe Mother understands the children’s level of need. J.J. cannot protect herself and
D.J. has inappropriate boundaries.
{¶43} On appeal, Mother argues Swindell’s testimony constitutes impermissible
hearsay. “Hearsay” is defined as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Evid.R. 801(C). We examined a similar argument in Matter of T.G., 5th Dist.
Stark No. 2021CA00119, 2022-Ohio-1213. We noted that in In re Z.T., 8th Dist. Cuyahoga
No. 88009, 2007-Ohio-827, ¶ 21, the Eighth District found that a social
[Cite as In re D.J., 2022-Ohio-4195.]
worker's testimony as to the contents of the agency's case file is an exception to the rule
against hearsay according to Evid.R. 803(6) and Evid.R. 803(8). The Eighth District
stated:
Evid.R.803(6) creates a hearsay exception for records kept in
the ordinary course of business. See In re McCullough (Dec. 6,
2001), Cuyahoga App. No. 79212. Likewise, Evid.R. 803(8) creates
a hearsay exception for public records and reports which set forth
the activities of an agency or office and contain matters observed
which, pursuant to a duty of law, the agency or office has a duty to
report. See In re Brown, [sic] Athens App. No. 06CA4, 2006-Ohio-
2863, at ¶32, fn.1; In re Garvin (June 15, 2000), [sic] Cuyahoga App.
Nos. 75329 and 75410. Id.{¶44} Under either exception, a social worker's testimony concerning records kept
by the agency, statements made by a parent, and reports taken during the course of the
agency's investigation, are admissible because the contents of her file, including the
reports against the family, had been compiled as part of the Agency's activities. Matter of
D.M., 5th Dist. Guernsey No. 18 CA 18, 2018-Ohio-4737, ¶ 27. As such, a caseworker in
a supervisory capacity may testify to the contents of the case file. Id., ¶ 74.
{¶45} In the instant case, therefore, Swindell’s testimony regarding the contents
of the Agency’s records is admissible if the testimony relates to the activities of the Agency
and contains matters observed which, pursuant to a duty of law, the Agency has a duty
to report. Id. Upon our review of the record, the properly-admissible testimony related to
the history of the family with the Agency, the contents of the case plan, and the Agency’s
[Cite as In re D.J., 2022-Ohio-4195.]
documented objections to the apartment as a suitable residence for the children. Mother
argues that Swindell’s testimony that Mother failed to complete a mental health
assessment and the Agency had grave concerns about the apartment due to the
presence of Austin’s mother are impermissible hearsay, but this evidence is admissible
as portions of reports compiled as part of the Agency’s activities.
{¶46} In contrast, Swindell’s testimony regarding her own conclusions regarding
Mother’s suitability departs from cataloguing the Agency’s handling of the case. Mother
did not object to this testimony, however, instead making a general “continuing objection”
to all of Swindell’s testimony. Mother did not renew the objection to Swindell’s testimony.
While a continuing objection is sometimes enough to preserve error, a blanket objection
to an entire witness is insufficient to provide a basis for review. See, State v. Henness,
79 Ohio St.3d 53, 59, 679 N.E.2d 686 (1997), citing Brady v. Stafford, 115 Ohio St. 67,
152 N.E.188 (1926), paragraph two of the syllabus. A continuing objection “in effect
places upon the trial court the responsibility of judging each question asked and of
spontaneously determining if it is objectionable. In effect, it puts the trial court in the
position of being assistant counsel. If there is reason to object to a specific question, the
objection should be made and the reason given.” State v. Jackson, 3rd Dist. Allen No. 1-
85-10, unreported, 1986 WL 9294, *3. For purposes of our review, we find Mother’s
continuing objection inadequate. See also, In re A.R., 9th Dist. Summit No. 22836, 2006-
Ohio-1548, ¶ 7 [review of the record does not support Father’s argument that continuing
objection was sufficient to preserve specific arguments and should have been renewed].
{¶47} The status of Mother’s objection matters to our standard of review. Finding
Mother’s continuous objection to Swindell’s testimony insufficient, we review the issue for
[Cite as In re D.J., 2022-Ohio-4195.]
plain error. See, In re E.L., 8th Dist. Cuyahoga No. 110171, 2021-Ohio-1495, ¶ 28
[“Rather, counsel for Mother raised a continuing objection to the introduction of hearsay
testimony, which was predicated on testimony concerning the contents of the agency's
case file and was unrelated to the results of Mother's drug tests at Cleveland Treatment
Center. Thus, Mother has forfeited her right to raise these issues on appeal absent a
claim of plain error.”] Pursuant to Crim.R. 52(B), “plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the
court.” The rule places several limitations on a reviewing court’s determination to correct
an error despite the absence of timely objection at trial: (1) “there must be an error, i.e.,
a deviation from a legal rule,” (2) “the error must be plain,” that is, an error that constitutes
“an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected
“substantial rights” such that “the trial court’s error must have affected the outcome of the
trial.” State v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing State v.
Morales, 10 Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted).
The decision to correct a plain error is discretionary and should be made “with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶48} We find no plain error in the admission of any of Swindell’s testimony. Even
the testimony regarding Mother’s custodial suitability was reiterated elsewhere during the
hearing by Parks, the ongoing caseworker, and the GAL. The Agency pursued
permanent custody because Mother demonstrated an inability to understand the
children’s need for constant supervision and enforcing of boundaries. The trial court
[Cite as In re D.J., 2022-Ohio-4195.]
therefore did not commit plain error in permitting Swindell to testify regarding her concerns
about Mother’s parenting.
{¶49} We find no plain error in the trial court’s handling of Swindell’s testimony.
Mother’s first assignment of error is overruled.
II.
{¶50} In her second assignment of error, Mother argues the trial court erred in
granting permanent custody of the children to the Agency because the decision was not
supported by clear and convincing evidence, was against the manifest weight of the
evidence, and was not in the children’s best interests. We disagree.
Standard of Review
{¶51} R.C. 2151.414(B)(1) states permanent custody may be granted to a public
or private agency if the trial court determines by clear and convincing evidence at a
hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the
child and 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 placing
[Cite as In re D.J., 2022-Ohio-4195.]
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.
{¶52} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D) mandates 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 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; 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.
{¶53} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial
court must apply when ruling on a motion for permanent custody. In practice, the trial
court will usually determine whether one of the four circumstances delineated in R.C.
2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding
the best interest of the child.
{¶54} 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
[Cite as In re D.J., 2022-Ohio-4195.]
be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all
relevant evidence before making this determination. The trial court is required to enter
such a finding if it determines, by clear and convincing evidence, that one or more of the
factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the
child's parents.
{¶55} The Ohio Supreme Court has defined “clear and convincing evidence” as
“[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the allegations sought to be established. It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty, as required
beyond a reasonable doubt, as in criminal cases.” Cross v. Ledford, 161 Ohio St. 469,
120 N.E.2d 118 (1954); In re: Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613(1985). In reviewing whether the trial court based its decision upon clear and convincing
evidence, “a reviewing court will examine the record to determine whether the trier of facts
had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel,
55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); see also C.E. Morris Co. v. Foley Constr.
Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment is “supported
by some competent, credible evidence going to all the essential elements of the case,” a
reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at 74.
{¶56} Moreover, “an appellate court should not substitute its judgment for that of
the trial court when there exists competent and credible evidence supporting the findings
of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the
weight to be given the evidence are primarily for the trier of fact. As the court explained
in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984): The
[Cite as In re D.J., 2022-Ohio-4195.]
underlying rationale of giving deference to the findings of the trial court rests with the
knowledge that the trial judge is best able to view the witnesses and observe their
demeanor, gestures, and voice inflections, and use these observations in weighing the
credibility of the proffered testimony. Moreover, deferring to the trial court on matters of
credibility is “crucial in a child custody case, where there may be much evident in the
parties’ demeanor and attitude that does not translate to the record well.” Davis v.
Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re: Christian,
4th Dist. Athens No. 04CA10, 2004-Ohio-3146; In re: C.W., 2nd Dist. Montgomery No.
20140, 2004-Ohio-2040.
Finding pursuant to R.C. 2151.414(B)(1)(d)
{¶57} The trial court determined that pursuant to R.C. 2151.414(B)(1)(d), D.J. and
J.J. were in the temporary custody of the Agency for twelve months of a consecutive
twenty-two-month period. Mother does not dispute this fact. 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.
Matter of O.M., 5th Dist. Coshocton No. 20CA0017, 2021-Ohio-1310, 2021 WL 1424200,
¶ 33 citing In the Matter of A.S., V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040,
2013-Ohio-4018. Therefore, a finding that grounds existed for permanent custody cannot
be against the manifest weight of the evidence. Matter of L.G., 5th Dist. Stark No. 2020-
CA-00139, 2021-Ohio-743, ¶ 36.
Best interest of D.J. and J.J.
{¶58} As an appellate court, we neither weigh the evidence nor judge the
credibility of the witnesses. Our role is to determine whether there is relevant, competent,
[Cite as In re D.J., 2022-Ohio-4195.]
and credible evidence upon which the fact finder could base its judgment. Cross Truck v.
Jeffries, 5th Dist. Stark No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported
by some competent, credible evidence going to all the essential elements of the case will
not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.
Foley Constr., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶59} In determining the best interest of the child at a permanent custody hearing,
R.C. 2151.414(D)(1) mandates 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 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; 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.
{¶60} Mother argues the trial court did not take into consideration her consistent
visitation with the children, her bonds with them, and the children’s desire to be reunited
with Mother.
{¶61} A child's best interests are served by the child being placed in a permanent
situation that fosters growth, stability, and security. 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 the court's determination will have on the lives
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of the parties concerned.” In re E.H., 5th Dist. Stark No. 2022CA00007, 2022-Ohio-1682,
2022 WL 1579856, ¶ 101 quoting In re Mauzy Children, 5th Dist. No. 2000CA00244, 2000
WL 1700073 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d
424 (8th Dist. 1994).
{¶62} In this case, we find there was competent, credible evidence to support the
juvenile court's decision that it was in the best interest of D.J. and J.J. to be placed in the
permanent custody of the Agency. Although Mother alleviated some of the concerns that
led to the initial removal of the children from the home, even more significant concerns
arose when the children became victims of physical and sexual abuse, and Mother did
not understand the extent to which she would need to supervise them constantly. The
GAL recommended that permanent custody was in the best interest of the children.
Unfortunately, despite Mother’s efforts, her residence remained unsuitable due it its size
and the people who live there, and Mother has not demonstrated that she is capable of
adequately supervising the children.
{¶63} Mother argues that she was appropriate in visitation with the children, but
the evidence also established that although she was told the children should not have
access to the internet, she provided them with devices they used to access pornography
and inappropriate material. Mother argues it was the foster placement where the children
were victimized, which is true, but they were victimized in part by Cousin who resides with
Brother, whom Mother suggested as a kinship placement. Ultimately, we must agree with
the trial court that the children cannot be put at risk while Mother figures out how
significant their needs are. Despite Mother’s arguments that she did seek a mental health
[Cite as In re D.J., 2022-Ohio-4195.]
assessment, would arrange her apartment to suit the children’s needs, and does know
what those needs are, her self-serving testimony is not supported by any evidence.
{¶64} For these reasons, we find that the trial court's determination that Mother
had failed to remedy the issues that caused the initial removal and therefore D.J. and J.J.
could not be placed with her within a reasonable time or should not be placed with her
was based upon competent credible evidence and is not against the manifest weight or
sufficiency of the evidence. We further find that the trial court's decision that permanent
custody to the Agency was in the child's best interest was based upon competent, credible
evidence and is not against the manifest weight or sufficiency of the evidence.
{¶65} Mother's second assignment of error is overruled.
III., IV.
{¶66} Mother’s third and fourth assignments of error are related and will be
addressed together. Mother argues that the trial court erred in admitting the testimony of
the GAL because the GAL failed to comply with R.C. 2151.281(D) and (I). We disagree.
{¶67} R.C. 2151.281 governs a GAL's duties and provides the GAL “shall perform
whatever functions are necessary to protect the best interest of the child, including, but
not limited to, investigation, mediation, monitoring court proceedings, and monitoring the
services provided the child by the public children services agency * * *.” There is no
specific requirement contained in R.C. 2151.281 that a GAL must interview the parents
or observe them with the child. R.C. 2151.281 instructs the Ohio Supreme Court to adopt
rules regarding the duties a GAL should perform when protecting the interest of a child.
The Ohio Supreme Court has done so in Superintendence Rule 48.
[Cite as In re D.J., 2022-Ohio-4195.]
{¶68} 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.” 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.
{¶69} We have recognized that Superintendence Rule 48 is a general guideline
that does not have the force of statutory law, and therefore an appellant does not have
any substantive right to enforce it. In the Matter of D.S., 5th Dist. Fairfield No. 15 CA 30,
2016-Ohio-79; Rice v. Rice, 5th Dist. Delaware No. 10 CAF 11 0091, 2011-Ohio-3099. In
general, the Ohio Rules of Superintendence are “purely internal housekeeping rules
which do not create substantive rights in individuals or procedural law.” Elson v. Plokhooy,
3rd Dist. Shelby No. 17-10-24, 2011-Ohio-3009.
{¶70} Further, most importantly for purposes of due process, the GAL was present
at the evidentiary hearing and testified. IN RE: K.A., 5th Dist. Fairfield No. 2021 CA 00004,
2021-Ohio-1773, ¶ 46. Mother appeared with counsel and had the opportunity to cross
examine the GAL.
{¶71} Additionally, the trial court, as the trier of fact, is permitted to assign weight
to the GAL's testimony and recommendation and to consider it in the context of all the
evidence before the court. K.A., supra, 2021-Ohio-1773, at ¶ 48, citing In the Matter of
D.S., 5th Dist. Fairfield No. 15 CA 30, 2016-Ohio-79. The decision of whether to consider
[Cite as In re D.J., 2022-Ohio-4195.]
a GAL report, even when the guardian did not fully comply with Superintendence Rule
48, is within a trial court's discretion. Id., citing Corey v. Corey, 2nd Dist. Greene No. 2013-
CA-73, 2014-Ohio-3258.
{¶72} Mother argues the GAL’s actions in the instant case were deficient and
compromised her testimony, to the extent that the trial court erred in permitting the GAL
to testify. Mother relies upon In re A.S., 10th Dist. Franklin No. 21AP-249, 2022-Ohio-
1861, but we find that case to be distinguishable.
{¶73} First, as in A.S., Mother in the instant case failed to object to admission of
the GAL’s testimony and report, and we therefore review this argument for plain error.
Id., ¶ 54, citing Matters of D.T., 5th Dist. Knox No. 20 CA 000004, 2020-Ohio-3808, ¶ 62.
{¶74} In A.S., the Tenth District held that a GAL failed to faithfully discharge his
duties because, e.g., his written report contained errors of fact; he met with the children
only once in three years; he never observed a visitation with the parents and children; he
didn’t ascertain the child’s wishes; and he failed to contact significant individuals in the
case including the parties and foster parents. Id. In short, the GAL failed to comply with
virtually every tenet of R.C. 2151.281. The Court noted, however, that A.S. is the rare
case in which the GAL so completely failed to discharge his responsibilities that he did
not act in the best interests of the children and the trial court committed plain error in
accepting his reports and testimony. Id., ¶ 54.
{¶75} A.S. is distinguishable from the instant case. Here, Mother argues the GAL
could not remember the names of J.J.’s counselor and one of the caseworkers, did not
personally visit Mother’s current apartment, and did not attend any visitations between
June 2021 (filing of the permanent custody complaint) and March 2022 (date of the
[Cite as In re D.J., 2022-Ohio-4195.]
permanent custody hearing). The Agency responds that Mother mischaracterized the
GAL’s efforts, pointing to the Amended Guardian Ad Litem Report of March 14, 2022,
Appendix C to the Agency’s brief. In contrast with the deficiencies of the GAL in A.S., the
GAL in the instant case contacted the relevant parties; reviewed the case file, hospital
records, counseling records, school records, and discovery; ascertained the children’s
wishes; and personally observed visitation at the Agency in December 2017. We find no
evidence the GAL was deficient in the performance of her duties comparable to the extent
of the GAL in A.S.
{¶76} Upon our review of the record, we find the trial court did not abuse its
discretion in its treatment of the testimony and report of the GAL. Superintendence Rule
48 does not create substantive rights. IN RE: K.A., supra, 2021-Ohio-1773, ¶ 49. We find
no reversible error, particularly where the trial court has the discretion to follow or reject
any recommendation of a GAL. Id., citing Wine v. Wine, 5th Dist. Delaware No. 04 CA F
10, 068, 2005-Ohio-975.
{¶77} Mother’s third and fourth assignments of error are overruled.
[Cite as In re D.J., 2022-Ohio-4195.]
CONCLUSION
{¶78} Mother’s four assignments of error are overruled and the judgment of the
Knox County Court of Common Pleas, Juvenile Division is affirmed.
By: Delaney, J.,
Wise, John, P.J. and
Baldwin, J., concur.