In re B.D. , 2023 Ohio 224 ( 2023 )

[Cite as In re B.D., 2023-Ohio-224.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE B.D. :
: No. 111767
A Minor Child :
[Appeal by Father] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 26, 2023
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD 20902707
Appearances:
Scott J. Friedman, for appellant.
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Rachel Matgouranis, Assistant Prosecuting
Attorney, for appellee.
MICHAEL JOHN RYAN, J.:
The underlying case involves the termination of the parental rights of the
mother and fathers of two children, B.D., who was born in 2012, and C.L., who was
born in 2020. Mother has filed an appeal in a companion case, In re C.L., 8th Dist.
Cuyahoga No. 111667. The within appeal was taken by the father (“Father”) of B.D.
After a thorough review of the facts relevant to Father and B.D., as well as the
pertinent law, we affirm.1
Factual and Procedural History
B.D. was born in 2012. In February 2020, the Cuyahoga County
Division of Children and Family Services (“CCDCFS” or “agency”) filed a complaint
alleging that B.D. and C.L. were neglected and requesting a disposition of temporary
custody to the agency. The agency also filed a motion for emergency temporary
custody of the children. Father was named in the complaint as B.D.’s “alleged
father” because paternity had not yet been established.
At the time of the filing, the children were in the legal custody of a
relative, which was the result of an adjudication from prior cases, Cuyahoga J.C.
Nos. AD17914599 and AD17915500. The relative was no longer willing to provide
care for the children, Mother had not addressed the concerns that led to the
children’s removal, and B.D.’s Father had failed to establish paternity, support, visit,
or communicate with B.D. since birth.
The juvenile court held a hearing in March 2020. Father failed to
appear at the hearing. After the hearing, the children were placed in the
predispositional emergency temporary custody of CCDCFS.
1
We only discuss Mother and C.L. as is necessary and find it unnecessary to discuss
C.L.’s father.
In July 2020, a magistrate held an adjudication and disposition
hearing. Father failed to appear. The children were adjudicated dependent and
committed to the agency’s temporary custody.
In January 2021, CCDCFS filed a motion to modify temporary
custody to permanent custody. A trial was set for January 12, 2022, a year after the
motion was filed. Father made his first appearance in the case on the day of trial.
The court appointed counsel for him and rescheduled trial for February 4, 2022.
On February 1, 2022, Father’s counsel filed a motion for continuance
so that Father could have more time to establish a relationship with B.D. and
complete his case plan objectives. The trial court granted the motion.
The trial went forward on May 25 and 26, 2022. Father appeared
with counsel the first day, and counsel asked for a continuance so that Father could
have more visitation with B.D. The trial court denied the request. The court noted
that Father had been receiving notices of the case proceedings since the inception of
the case in February 2020, but did not make his first appearance until January 2022.
The court further noted that the case had already been continued to allow Father
more time to develop a relationship with B.D.
Father failed to appear for the second day of trial, and his counsel
requested a continuance. The trial court questioned counsel regarding Father’s
absence. Counsel responded that he had not heard from Father and he did not
“know what the issue” was. The trial court denied the request.
Trial Testimony
B.D.’s Behavioral and Mental Health Issues and Needs
An intervention specialist at B.D.’s school testified that the child had
behavioral issues. The specialist began working with B.D. in late 2021, with the goal
of helping B.D. to cope when she was upset, angry, or overwhelmed so that she could
keep herself and others safe.
The intervention specialist testified that B.D. was making strides but,
in early 2022, B.D. was “[j]ust angry and mad” and would fight, argue, and act in a
destructive manner. Initially, B.D. would exhibit this behavior once or twice a week,
but it later escalated to a near-daily occurrence. As a result of the behaviors, B.D.
was suspended from school numerous times. The intervention specialist did not
believe that B.D. had met any of the goals of the intervention plan.
B.D.’s foster mother testified that she has continuously fostered both
B.D. and her sibling for more than two years. According to the foster mother, B.D.
has been diagnosed with post-traumatic stress disorder, attention deficit
hyperactivity disorder, bipolar disorder, schizophrenia, and a mood disorder. B.D.
had behavioral issues when she first came to live with the foster mother, and they
worsened over time. The foster mother testified that in the six weeks prior to the
trial, she called the police to her home approximately six times due to concerns
about B.D.’s behavior, which included “tying things around her neck,” “banging her
head on the floor,” and “threatening to kill herself.” B.D. had been prescribed
medication and, at the time of trial, was compliant with taking it.
Similar to B.D.’s intervention specialist, the foster mother testified
about B.D.’s escalating behavioral issues. The foster mother testified that B.D.’s
behaviors started escalating in December 2021. The child had suicidal ideation,
increased aggression, frequent meltdowns, was hearing voices, and had an inability
to express her feelings. From January 2022 through the May 2022 trial date, B.D.
had been hospitalized approximately eight times due to mental health crises.
According to the foster mother, B.D. cannot be left alone.
The CCDCFS caseworker assigned to the case corroborated the
intervention specialist and foster mother’s testimonies. The caseworker testified
that B.D.’s aggression became more severe and she was “acting out” against younger
students at school.
At the time of trial, B.D. was nine years old. She had been adjudicated
abused, neglected, or dependent on four separate occasions (including this case) and
had been in the continuous custody of the agency for over two years.
Father’s Case Plan
Father was initially designated as “alleged father” because his
paternity had not been established at the time this complaint was filed. A case plan
was developed for Father. The plan consisted of Father establishing paternity,
establishing a relationship with B.D., demonstrating an understanding of the child’s
behavioral issues, and securing appropriate housing.
Father’s paternity was established in December 2021. Despite being
named as “alleged father” in the February 2020 complaint, Father did not attempt
to establish a relationship with B.D. until after paternity was confirmed. When
CCDCFS initially attempted to engage Father, he stated that he did not want any
involvement with CCDCFS or B.D. until his paternity was confirmed.
The caseworker testified that Father did not appear to understand
B.D.’s behavioral and mental health issues. She described Father as not having
“much response” and appearing “confused” when she attempted to discuss the
child’s behaviors and needs with him. According to the caseworker, Father was not
consistent in trying to visit with B.D. She also testified that Father never reached
out to her to discuss B.D.’s issues and needs and he was not consistent with learning
about her needs and finding out how he could assist B.D. in managing her behaviors
and issues.
In regard to the housing component of Father’s case plan, the
caseworker testified that Father was residing in a one-bedroom apartment with his
two-year old grandson. The caseworker had concerns about Father’s housing
situation because of B.D.’s behavioral issues and her tendency to act aggressively
toward younger children. The worker was also concerned that, because the
apartment had only one bedroom, there would not be space to separate B.D. and the
two-year grandson if need be.
Father told the caseworker that his mother passed away and he and
his siblings inherited her home. However, Father admitted that the house had not
been maintained and was uninhabitable. Father told the caseworker that if he
gained custody of B.D. and had not secured larger housing, he would sleep on the
couch and B.D. and the grandson would share the bedroom.
The agency referred Father to the Community Collaborative to assist
him in obtaining appropriate housing. As of the time of trial, Father had not secured
new housing.
Father began having telephonic contact with B.D. around January
2022 and maintained that contact through the time of trial in May 2022. Father
would call B.D. in the morning before school. However, as of the time of trial, Father
had only a few — “maybe three” as testified to by the foster mother — in-person visits
with B.D.
The agency also had concern about granting custody of B.D. to Father
because, at the time of trial, Father had a pending criminal case for felonious assault
with firearm specifications, which was alleged to have been committed in December
2021.
B.D.’s Foster Placement
As of the time of trial, B.D. and her sibling had been placed together
with the foster mother for over two years. They had a schedule at the foster mother’s
house and were comfortable with her. The children were also “happy to be
together.”
B.D.’s basic needs were being met in her foster placement. She was
receiving counseling and psychiatric services and was up to date with her medical
appointments.
B.D.’s Placement Wish
B.D. was not consistent about her wish as to her placement. The
foster mother testified that B.D.’s wish changes depending “on who she’s mad at and
how she feels.” At various times, B.D. stated that she wanted to live with the foster
mother, Mother, or Father.
Guardian Ad Litem’s (“GAL”) Report
The GAL recommended that legal custody of B.D. be granted to
Father. According to the GAL, Father “only had about six months to work on a
relationship with B.D.” The GAL admitted, however, that although he had been the
GAL on the case since March 2020, his first contact with Father was a few weeks
prior to the May 2022 trial. The GAL also admitted that the Father’s proposed living
arrangement in his one-bedroom apartment was not ideal. He further admitted that
Father’s pending criminal case could pose an obstacle to him working on his
relationship with B.D.
Other Pertinent Facts
Father told the caseworker that he “doesn’t want to be rushed into
this. He doesn’t want to be put on a set timeframe.” In contrast, the CCDCFS
caseworker testified that permanent custody is in B.D.’s best interest because “this
is [B.D.’s] [fourth] time in custody. No case plan services have been met, and [B.D.]
just need[s] permanency.”
Juvenile Court’s Findings
In granting CCDCFS’s motion for permanent custody, the juvenile
court made numerous findings including (1) B.D. cannot be placed with either
parent within a reasonable time or should not be placed with her parents; (2) Father
does not fully understand the needs of B.D.; (3) prior to the dispositional hearing,
no relative or other interested person has filed, or has been identified in, a motion
for legal custody; (4) Father has demonstrated a lack of commitment toward B.D. by
failing to regularly support, visit, or communicate with B.D. when able to do so, or
by other actions showing an unwillingness to provide an adequate permanent home
for the child; (5) Father abandoned B.D.; and (6) that it was in the best interest of
B.D. to be placed in the permanent custody of CCDCFS.
Assignments of Error
I. The juvenile court abused its discretion when it denied Father’s
motion for a continuance.
II. The juvenile court erred in terminating the Appellant’s parental
rights, in violation of his rights under the Fourteenth
Amendment to the United States Constitution and Article I,
Section 16 of the Ohio Constitution.
Law and Analysis
No Abuse of Discretion in Denying Motion to Continue
On the first day of trial, Father requested a continuance so that he
could have more visitation with B.D. The trial court denied the request. On the
second day of trial, Father failed to appear and his counsel requested a continuance.
The trial court questioned counsel regarding Father’s absence; counsel responded
that he had not heard from Father and he did not “know what the issue” was. The
trial court denied the request.
In his first assignment of error, Father contends that the trial court
abused its discretion in denying a continuance because “he had limited
opportunities in a short period of time” to become involved in B.D.’s life.
The decision to grant or deny a motion for a continuance rests within
the broad discretion of the trial court. State v. Froman, 162 Ohio St.3d 435, 2020-
Ohio-4523, 165 N.E.3d 1198, ¶ 91, citing State v. Unger, 67 Ohio St.2d 65, 67, 423
N.E.2d 1078 (1981), syllabus. This broad discretion is also afforded to the trial court
in a permanent custody hearing. In re A.W., 8th Dist. Cuyahoga No. 109239, 2020-
Ohio-3373, ¶ 25.
“‘“There are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to violate due process. The answer must be found in
the circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.”’” Id. at ¶ 26, quoting Unger at id.,
quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 11 L.Ed.2d 921 (1964).
Factors to consider include
“the length of the delay requested; whether other continuances have
been requested and received; the inconvenience to litigants, witnesses,
opposing counsel and the court; whether the requested delay is for
legitimate reasons or whether it is dilatory, purposeful, or contrived;
whether the defendant contributed to the circumstance which gives rise
to the request for a continuance; and other relevant factors, depending
on the unique facts of each case.”
In re A.W. at ¶ 26, quoting Unger at 67-68.
Additionally, Juv.R. 23 provides that “[c]ontinuances shall be granted
only when imperative to secure fair treatment for the parties” and Loc.R. 35(C) of
the Cuyahoga County Court of Common Pleas, Juvenile Division, provides:
No case will be continued on the day of trial or hearing except for good
cause shown, which cause was not known to the party or counsel prior
to the date of trial or hearing, and provided that the party and/or
counsel have used diligence to be ready for trial and have notified or
made diligent efforts to notify the opposing party or counsel as soon as
he/she became aware of the necessity to request a postponement. This
rule may not be waived by consent of counsel.
In regard to the denial of Father’s request for a continuance on the
first day of trial, the juvenile court noted that it had already granted Father
continuances to allow him more time to form a relationship with B.D. This case was
initiated in February 2020, and Father was identified as the “alleged father” at that
time. Trial on CCDCFS’s motion for permanent custody was originally scheduled
for January 2022. Father appeared at that time — his first appearance in the case —
and the court appointed an attorney for him; the trial was rescheduled for February
4, 2022. On February 1, Father’s counsel filed a motion for a continuance so that
Father could have more time to bond with B.D. and complete his case plan
objectives. The trial court granted the continuance.
On this record, the trial court did not abuse its discretion in denying
Father a continuance on the first day of trial in May 2022. Father was aware of this
proceeding since its inception in February 2020, and the court had previously
allowed Father additional time to form a relationship with B.D. and complete his
case plan objectives.
The record demonstrates that the other interested parties — Mother’s
counsel, the Agency caseworker, the children’s GAL, the intervention specialist, the
foster mother, and CCDCFS’s counsel — were present that day and ready to proceed.
Continuing the trial at that time would have undoubtedly caused inconvenience to
the other interested parties.
Moreover, Father opted to wait almost two years to get involved in the
case, despite being notified about it from the beginning. His desire to “take it slow”
should not trump affording a permanent placement for B.D.
The trial court did not abuse its discretion by denying Father’s motion
for a continuance on the first day of trial.
Likewise, the trial court did not abuse its discretion by denying the
motion for a continuance on the second day of trial. Father failed to appear, and
counsel had no explanation for his nonappearance. Even now on appeal, Father has
failed to explain his absence for the second day of trial. A parent facing termination
of parental rights “must exhibit cooperation and must communicate with counsel
and with the court in order to have standing to argue that due process was not
followed in a termination proceeding.” In re Q.G., 170 Ohio App.3d 609, 2007-
Ohio-1312, 868 N.E.2d 713, ¶ 12 (8th Dist.). Father failed to communicate with the
court or his counsel regarding the circumstances of his absence. The trial court did
not abuse its discretion in denying a continuance of the second day of trial.
The trial court did not abuse its discretion in denying the request for
a continuance on either the first or second day of trial. The first assignment of error
is therefore overruled.
Permanent Custody Determination Supported by Manifest Weight of
the Evidence
In his second assignment of error, Father contends that the trial
court’s termination of his parental rights was against the manifest weight of the
evidence.
Standard of Review and Permanent Custody Statute
The juvenile court has exclusive jurisdiction to determine the custody
of any child not a ward of another court of this state. R.C. 2151.23(A)(2). “It is well
recognized that the right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997), citing In re Murray, 52 Ohio
St.3d 155, 556 N.E.2d 1169 (1990). Thus, “the overriding principle in custody cases
between a parent and nonparent is that [biological] parents have a fundamental
liberty interest in the care, custody, and management of their children.” In re
Hockstok, 98 Ohio St.3d 238, 2002-Ohio-7208, 781 N.E.2d 971, ¶ 16, citing
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). “This
interest is protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution and by Section 16, Article I of the Ohio Constitution.” In
re Hockstok at id., citing Santosky at id., and In re Shaeffer Children, 85 Ohio
App.3d 683, 689-690, 621 N.E.2d 426 (3d Dist.1993). A parent’s interest, however,
is “‘always subject to the ultimate welfare of the child.’” In re M.J.M., 8th Dist.
Cuyahoga No. 94130, 2010-Ohio-1674, ¶ 15, quoting In re B.L., 10th Dist. Franklin
No. 04AP-1108, 2005-Ohio-1151, ¶ 7.
A trial court’s decision to grant permanent custody will not be
reversed as being against the manifest weight of the evidence if the record contains
competent, credible evidence by which the court could have found that the essential
statutory elements for an award of permanent custody have been established by
clear and convincing evidence. In re B.P., 8th Dist. Cuyahoga Nos. 107732 and
107735, 2019-Ohio-2019, ¶ 22; In re G.W., 8th Dist. Cuyahoga No. 107512, 2019-
Ohio-1533, ¶ 62.
“Clear and convincing evidence” is that “measure or degree of proof”
that “produce[s] in the mind of the trier of fact 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. “It is intermediate, being more than a mere
preponderance, but not to the extent of such certainty as is required beyond a
reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”
Id. at 477.
R.C. 2151.414 sets forth a two-prong analysis to be applied by a
juvenile court in adjudicating a motion for permanent custody. Under the statute,
the juvenile court is authorized to grant permanent custody of a child to the agency
if, after a hearing, the court determines, by clear and convincing evidence, that any
of the five factors under R.C. 2151.414(B)(1)(a)-(e) exists and that permanent
custody is in the best interest of the child under the factors enumerated in
R.C. 2151.414(D)(1).
R.C. 2151.414(B)(1)
R.C. 2151.414(B)(1) governs the first step in an agency’s motion for
permanent custody and contains five factors. In re R.H., 8th Dist. Cuyahoga
No. 111505, 2022-Ohio-3765, ¶ 21. The trial court here made two of the findings.
First, under R.C. 2151.414(B)(1)(a), the trial court found that B.D. “cannot be placed
with either of [her] parents within a reasonable time or should not be placed with
[her] parents.”
In determining whether a child cannot be placed with one of the
child’s parents within a reasonable time or should not be placed with either parent,
the juvenile court must consider “all relevant evidence,” including specific factors
enumerated in R.C. 2151.414(E). If the juvenile court finds by clear and convincing
evidence that at least one of the enumerated factors in R.C. 2151.414(E) exists as to
each of the child’s parents, the juvenile court must find that the child cannot be
placed with either parent within a reasonable time or should not be placed with
either parent. R.C. 2151.414(E).
Relative to Father, the juvenile court here made the following findings
under R.C. 2151.414(E): (1) following the placement of B.D. outside of her home and
notwithstanding reasonable case planning and diligent efforts by the agency to assist
Father to remedy the problems that initially caused B.D. to be placed outside the
home, Father has failed continuously and repeatedly to substantially remedy the
conditions causing her to be placed outside her home (R.C. 2151.414(E)(1)); (2)
Father has demonstrated a lack of commitment toward B.D. by failing to regularly
support, visit, or communicate with her when able to do so, or by other actions
showing an unwillingness to provide an adequate permanent home for B.D. (R.C.
2151.414(E)(4)); (3) Father abandoned B.D. (R.C. 2151.414(E)(10)); (4) Father, for
any reason, is unwilling to provide food, clothing, shelter, and other basic necessities
for B.D. or to prevent the child from suffering physical, emotional, or sexual abuse
or physical, emotional, or mental neglect (R.C. 2151.414(E)(14)); and (5) under
the “any other relevant factor” provision in the statute, that “Father has a pending
criminal case for felonious assault with firearm specifications, which allegedly
occurred in December 2021.” (R.C. 2151.414(E)(16)).
Upon review, the juvenile court’s findings are supported by
competent, credible evidence. In regard to the court’s failure to remedy finding, the
record demonstrates that Father’s case plan objectives were to establish a
relationship with B.D., demonstrate an understanding of her behaviors, and secure
appropriate housing to be able to safely accommodate her. The agency provided
Father with notice of the proceedings since the case was initiated in February 2020.
However, despite those notices, Father did not begin to engage with CCDCFS or have
any contact with the child until nearly two years later in January 2022. According
to the intervention specialist, caseworker, and foster mother, B.D.’s extreme
behaviors started to escalate in late 2021 or early 2022, which was within the
timeframe that Father’s paternity was established and he began having telephonic
contact with the child.
At the time of the permanent custody trial in May 2022, Father had
only visited with B.D. a total of three times. The record demonstrated that Father
failed to make substantial progress in establishing a relationship with B.D.
The testimony at trial also established that Father did not make
progress as it related to demonstrating an understanding of B.D.’s behavioral and
mental health issues. At the time of trial, B.D. was nine years old, had significant
behavioral and mental health issues, and had only had her first contact with Father
a few months prior to the trial. Father knew, since at least February 2020, that he
was potentially B.D.’s father, but failed to engage with her or CCDCFS. The
caseworker testified that he did not have “much response” and appeared “confused”
when she discussed B.D.’s behaviors and needs with him. Further, Father did not
reach out to her to discuss B.D.’s behaviors and needs and was not consistent in
learning about ways he could help her.
Moreover, the testimony presented at trial showed that Father had
not successfully completed the housing objective of his case plan to be able to safely
and appropriately accommodate the child in his home. He lived in a one-bedroom
apartment with his two-year grandson. CCDCFS had concerns about that living
arrangement given B.D.’s tendency to act aggressively toward younger children. The
agency referred Father to a collaborative to assist him in finding suitable housing,
but as of the time of trial, he was still residing in the one-bedroom apartment.
Competent, credible evidence supports the juvenile court’s failure to
remedy finding
Competent, credible evidence also supports the juvenile court’s lack
of commitment finding. We recognize that Father did start having regular telephone
contact with B.D. around January 2022, but at the time of trial, Father had only
visited in person with B.D. a total of three times. He first became involved with B.D.
in January 2022, which was nearly two years after the case was initiated. Further,
the record is devoid of any evidence that Father provided support to B.D. by
purchasing gifts, food, clothing, or other necessities for her. Father’s delayed
involvement with B.D. and the lack of consistent in-person visitation with the child
support the trial court’s lack of commitment finding.
In regard to the court’s abandonment finding, R.C. 2151.011(C)
provides that “[f]or the purposes of this chapter, a child shall be presumed
abandoned when the parents of the child have failed to visit or maintain contact with
the child for more than ninety days, regardless of whether the parents resume
contact with the child after that period of ninety days.” The juvenile court
specifically noted that “[F]ather was named on the initial complaint in this case and
did not begin visiting with the child until almost 2 years into the case.” The trial
testimony demonstrates that Father had no visitation or communication with B.D.
from the time the case was filed in February 2020 until January 2022. The
abandonment finding was therefore supported by competent, credible evidence.
The juvenile court’s finding of a relevant factor as to why B.D. cannot
or should not be placed with Father — a pending criminal case — is also supported
by competent, credible evidence. A copy of the pending indictment charging Father
with felonious assault with firearm specifications was admitted into evidence. This
factor, along with the others mentioned above, provide competent, credible evidence
for the juvenile court’s finding that B.D. cannot or should not be placed with Father.
Based on its findings under R.C. 2151.414(E), the juvenile court was
required to find that B.D. could not be placed with Father within a reasonable time
or should not be placed with Father. See, e.g., In re C.H., 8th Dist. Cuyahoga
Nos. 82258 and 82852, 2003-Ohio-6854, ¶ 58, citing In re Glenn, 139 Ohio App.3d
105, 113, 742 N.E.2d 1210 (8th Dist.2000) (“Once a court determines, by clear and
convincing evidence one of the enumerated factors exists, the court must enter a
finding that the child cannot or should not be placed with either of his parents within
a reasonable time.”).
In addition to finding under R.C. 2151.414(B)(1)(a) that B.D. cannot
or should not be placed with Father, the juvenile court also made a finding under
R.C. 2151.414(B)(1)(e). That section provides that “[t]he 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.” R.C. 2151.414(B)(1)(e). The
evidence at trial established that B.D. has been adjudicated on three prior occasions.
Thus, competent, credible evidence supports the juvenile court’s finding under R.C.
2151.414(B)(1)(e).
Having found that competent, credible evidence supports the juvenile
court’s findings under R.C. 2151.414(B), we now consider the second step of a
permanent custody proceeding, that is, the best interest of the child determination.
Best Interest Determination
R.C. 2151.414(D)(1)(a) through (e) set forth the relevant factors that a
court should consider in determining the best interest of a child. “The court must
consider all the elements in R.C. 2151.414(D) as well as other relevant factors. There
is not one element that is given greater weight than the others pursuant to the
statute.” In re Schaefer, 111 Ohio St.3d 498, 2016-Ohio-5513, 857 N.E.2d 532, ¶ 56.
This court reviews a trial court’s best-interest determination under R.C. 2151.414(D)
for an abuse of discretion. In re R.H., 8th Dist. Cuyahoga No. 111505, 2022-Ohio-
3765, at ¶ 27, citing In re J.F., 2018-Ohio-96, 102 N.E.3d 1264, ¶ 55 (8th Dist.).
“[T]he best interest determination focuses on the child, not the parent.” In re R.H.
at id., citing In re K.Z., 8th Dist. Cuyahoga No. 107269, 2019-Ohio-707, ¶ 85. While
a trial court is required to consider each of the R.C. 2151.414(D)(1) factors in making
its permanent custody determination, “there is not one element that is given more
weight than the others pursuant to the statute.” In re Schaefer at ¶ 56.
In considering whether the grant of permanent custody was in B.D.’s
best interest, the court considered the following R.C. 2151.414(D)(1) factors: “the
interaction and interrelationship of the child with the child’s parents, siblings,
relatives, and foster parents” (R.C. 2151.414(D)(1)(a)); “the wishes of the child” (R.C.
2151.414(D)(1)(b)); “the custodial history of the child, including whether the child
has been in temporary custody of a public children services agency or private child
placing agency under one or more separate orders of disposition for twelve or more
months of a consecutive 22 month period” (R.C. 2151.414(D)(1)(c)); “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” (R.C. 2151.414(D)(1)(d)); and
“[w]hether any factors in divisions (E)(7) to (11) of this section apply in relation to
the parents and the child (R.C. 2151.414(D)(1)(e)).
Upon consideration of the above factors, the juvenile court made the
following findings. Under R.C. 2151.414(D)(1)(a), the court found that B.D. “has
only met and visited with the Father approximately 3 times. The child has been with
the caregiver for over two years.” Under R.C. 2151.414(D)(1)(c), the court found that
B.D. “has been in agency custody for over two years on this case, which is the 4th
time the child has been in agency custody.”
The court also found the following under R.C. 2151.414(D)(1)(d):
The child deserves a safe and stable environment where all her needs
can be met and she can thrive. This is the child’s 4th time coming into
agency custody. On a prior filing the child was placed in the legal
custody of a relative. The Father was listed as an alleged father when
this case was initiated in February 2020 and the father never engaged
in services or met/established a relationship with the child until he
established paternity, which wasn’t until the end of 2021. While the
father and the child have been visiting over the past few months since
paternity was established they have only met approximately 3 times.
Father does not fully understand the needs of the child. Father has a
pending criminal case * * *.
May 31, 2022 permanent custody journal entry.
A review of the record reveals clear and convincing evidence
supporting the juvenile court’s finding that permanent custody to the agency was in
B.D.’s best interest and the juvenile court did not abuse its discretion in awarding
permanent custody of her to CCDCFS.
We recognize that B.D., at times, stated that she wished to live with
Father. However, the foster mother testified that B.D. was inconsistent about who
she wanted to live with and the inconsistency was based on “who she was mad at” at
any particular time. “While [the wishes of the child are] one of the many factors
under R.C. 2151.414(D), it is not controlling.” In re D.B., 2d Dist. Miami No. 2005-
CA-33, 2006-Ohio-479, ¶ 42.
We also recognize that the GAL recommended legal custody of B.D.
to Father. The juvenile court was not bound by that recommendation, however. The
juvenile court’s focus in determining whether to terminate parental rights is the best
interest of the child. R.C. 2151.414(B)(1) and (D). The juvenile court is assisted in
making this determination by considering information presented by the GAL,
including the GAL’s report, recommendation, and other testimony. See Sup.R.
48.03(D)(11) (stating that a GAL’s duties include providing the court “with any
necessary information * * * to make an informed recommendation regarding the
best interest of the child.”).
The GAL here admitted that although he had been assigned to the
case in March 2020, his first contact with Father was a few weeks prior to the
May 2022 trial. He also admitted that Father’s proposed living situation was not
ideal and that Father’s pending criminal case could pose an obstacle to Father
working on his relationship with B.D.
In reviewing permanent custody proceedings, we are mindful that the
power of the trial court to exercise discretion is particularly important. The
knowledge obtained through contact with and observation of the parties cannot
always be adequately conveyed to a reviewing court through a printed record.
See Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952). “The 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 of the parties.” In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th
Dist.1994).
We find the trial court acted in its discretion, consistent with clear and
convincing evidence in the record, in terminating Father’s parental rights and
committing B.D. to the permanent custody of CCDCFS. The trial court’s decision
was neither against the child’s best interests nor the manifest weight of the evidence.
The second assignment of error is therefore overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
MICHAEL JOHN RYAN, JUDGE
ANITA LASTER MAYS, A.J., and
MICHELLE J. SHEEHAN, J., CONCUR