In re J.S.

[Cite as In re J.S., 2024-Ohio-3310.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE J.S., ET AL. :

: No. 113758

[Appeal by T.M., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: August 29, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case Nos. AD23910912 and AD23910913

Appearances:

Dunham Law LLC and Michael P. Dunham, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Joseph C. Young, Assistant Prosecuting

Attorney, for appellee.

MARY J. BOYLE, J.:

Appellant-mother (“Mother”) appeals the decision of the Cuyahoga

County Juvenile Court terminating her parental rights and awarding custody of her

minor children, son J.S. and daughter N.M., to the Cuyahoga County Division of

Children and Family Services (“CCDCFS”), raising the following two assignments of

error for review:

Assignment of Error I: The trial court erred as a matter of law when

it did not bifurcate its adjudication and disposition proceedings under

[R.C. 2151.35(B)(1)] and Juv.R. 34(A).

Assignment of Error II: The trial court’s judgment was made with

insufficient evidence, and, was against the manifest weight of the

evidence.

For the reasons set forth below, we affirm.

I. Facts and Procedural History

This matter began in July 2022 when J.S. and N.M. were committed

to the predispositional temporary custody of CCDCFS. This complaint could not be

resolved within the statutory time frame and the matter was refiled three separate

times before the September 21, 2023 complaint was filed in the instant case.1

In the September 2023 complaint, CCDCFS alleges that the children

have been in the uninterrupted custody of CCDCFS since July 21, 2022, and that

Mother has an ongoing substance abuse problem that she has failed to appropriately

address. Most recently, Mother tested positive for cocaine, marijuana, and

amphetamines in August 2023. Mother was offered substance abuse services, but

has failed to engage on a consistent basis. According to the complaint, J.S. has been

previously removed from Mother’s care due to her ongoing substance abuse and

mental health issues.

1 Two separate cases were filed below: Case No. AD23910912 involves J.S. and

Case No. AD23910913 involves N.M. Because most of the documents within these cases

are virtually identical, citation to the record will be to Case No. AD23910913 unless a more

specific citation is warranted.

The complaint further alleges that the children’s younger sibling, S.P.,

is currently in the emergency custody of CCDCFS due to Mother’s substance abuse,

mental health, and housing.2 The complaint notes that S.P. tested positive for

cocaine and marijuana at birth on August 26, 2023. The complaint also alleges that

Mother has a mental health issue, which has prevented her from providing adequate

care for her children, and that she suffered a mental health crisis, requiring

hospitalization while the children were in her care. Mother has been offered mental

health services, but has failed to engage in those services on a consistent basis.

Additionally, the complaint alleges that mother lacks stable and appropriate

housing, noting that her home has a cockroach infestation and a powerful ammonia

odor. The complaint further alleges that J.S.’s and N.M.’s alleged respective fathers

have failed to establish paternity and have failed to support on a consistent basis,

and N.M.’s alleged father was alleged to commit an act of violence before the

children.3 With regard to pending charges, the complaint alleges that Mother has a

child endangering case in the Cleveland Municipal Court and N.M.’s alleged father

pled guilty to aggravated assault in the Cuyahoga County Common Pleas Court.

The court granted predispositional temporary custody on

September 21, 2023, and the matter was set for adjudicatory hearing on

December 18, 2023. At the outset of the adjudicatory hearing, Mother’s counsel

2 S.P. was also involved in the trial court proceedings, but is not part of this appeal.

3 It was later determined at the adjudicatory hearing that N.M.’s father is deceased

and J.S.’s alleged father established paternity.

requested a continuance, stating that “I’ve been in contact with my client throughout

the weekend; however, she is not here today and I would ask for a continuance since

she’s not present.” (Tr. 5.) Mother’s counsel continued that she does not “have a

specific excuse” and she attempted to reach her this morning, but Mother “still has

a pending warrant,” so Mother’s counsel assumed “that has something to do with

it.” (Tr. 5.) CCDCFS opposed a continuance, stating that the matter has been refiled

on multiple occasions and a “continuance would require the refiling again of both

cases[.]” (Tr. 6.) The children’s guardian ad litem (“GAL”) also expressed her

position to proceed with the hearing. The trial court denied the continuance, and

the following evidence was adduced at the adjudication hearing.4

Caitlin Golich, a START Extended Worker with CCDCFS (“Golich”),

testified that Mother was first involved with CCDCFS in 2018 after J.S. was placed

in emergency custody of the agency. Thereafter, concerns surfaced about drug abuse

after N.M. was born exposed to cocaine and marijuana in May of 2020, which led to

CCDCFS’s reinvolvement. According to Golich, additional concerns arose with

respect to Mother’s mental health, parenting ability, housing, and the ability to

provide basic needs when J.S. was again placed in agency custody along with N.M.

in July 2022. Furthermore, CCDCFS was concerned with J.S.’s education because

he “had to repeat his kindergarten year once he was in Agency custody due to not

4 The court noted prior to the start of testimony that E.C., who is N.M.’s paternal

grandmother, filed a motion to intervene and was not present at the adjudication hearing.

E.C., however, later entered the courtroom during the presentation of CCDCFS’s case. At

that point, the court acknowledged that it would hear from her afterwards.

being enrolled in school for a very long time, and when he was attending school, he

attended very inconsistently.” (Tr. 12-13.)

In July 2022, Mother took J.S. to Frontline Mental Healthcare

believing him to be possessed by the KKK. Mother’s interaction with Frontline staff

resulted in her involuntary placement into a mental health care facility. Because

Mother could not identify an appropriate caregiver for the children at that time, the

police brought the children to CCDCFS. Upon arrival at the agency, the children

appeared unbathed, unkempt, and were wearing dirty clothing. N.M. was in

possession of a small backpack containing condoms, lighters, cigarettes, and

Narcan. At that time, J.S. was five years old and N.M. was two years old.

CCDCFS later learned that Mother was diagnosed with major

depressive disorder and schizophrenia and that Mother had also reported diagnoses

of ADHD, PTSD, anxiety, and bipolar disorder. Golich testified that Mother did not

consistently engage in treatment for these mental health issues. According to

Golich, Mother was referred to multiple service providers for her issues, including

Signature Health, Life Solutions South, Moore Counseling, and NORA, among

others. Mother “would do phone calls, set up meetings, but then call and reschedule

them or not show and then call and reschedule until finally they had to no longer try

to reach out to her.” (Tr. 31.)

Golich further testified that she visited Mother’s home in the summer

of 2022. She described the home as so dirty to the point where she was concerned

about the children living there. The floors and walls were brown with dirt, there was

a concern that not all the food in the home was consumable, and there was used cat

litter scattered on the floor. Since that visit, Mother has not permitted Golich back

into her home, but had visits outside of the home. Golich also described concerns

with these visits, including “flies, gnats, things like that that are congregated around

that specific unit door as well as the very strong odor of ammonia, and specifically

cat urine.” (Tr. 21.) Mother also reported that her home was infested with

cockroaches.

Golich testified that the children have remained in uninterrupted

custody of CCDCFS since their removal in July 2022. Additionally, approximately

a year after J.S. and N.M. had been placed in agency custody, Mother gave birth to

S.P. in August 2023, at which time Mother tested positive for cocaine, marijuana,

amphetamines, and methamphetamines. Mother also had active warrants for

criminal charges of theft and child endangerment, relating to J.S. and N.M. With

regard to the children’s fathers, Golich testified that paternity was established for

J.S.’s father but she has only been able to speak with him once and he has had no

contact with J.S. J.S.’s father indicated to Golich that he does not have the ability to

care for his son. Paternity was also established with N.M.’s father, but he passed

away in August 2023.

At the conclusion of the adjudication hearing, the magistrate found

J.S. and N.M. to be neglected and dependent. The matter then proceeded directly

to a separate disposition hearing. Neither Mother, CCDCFS, nor the GAL voiced any

objection to proceeding with the disposition hearing. The magistrate stated,

“[W]e’re gonna start over here with the Prosecutor.” (Tr. 34.) CCDCFS, Mother,

and the GAL each waived their opening statement. E.C. stated that she wanted to

raise her granddaughter, N.M. The following evidence was then adduced at the

disposition hearing.5

Golich testified that CCDCFS developed a case plan for Mother to

promote the permanency plan of reunification. This plan included services to

address Mother’s issues with substance abuse, mental health, housing, basic needs,

and educational concerns. The educational concerns resulted from Mother failing

to timely enroll J.S. in school, failing to consistently get him to school or to pick him

up when he did attend, and disenrolling him before the end of his first school year.

These actions led to J.S. repeating kindergarten after entering CCDCFS custody.

CCDCFS referred Mother to multiple service providers for her

identified issues, but she never followed through with her appointments. Mother

also previously worked with the Hitchcock Sober Living Home in 2020 for help with

her substance abuse issues, but was ultimately kicked out for a rule violation.

Mother has not successfully completed a substance abuse treatment program since

then and has refused to complete the drug screens requested by CCDCFS.

With regard to Mother’s mental health, at the time of the hearings,

Mother was working with Signature Health and had completed an assessment and

received a prescription for medication. However, her engagement was inconsistent

5 CCDCFS’s request to incorporate all evidence admitted during the adjudication

hearing was unopposed and granted by the court.

with scheduled counseling sessions or group sessions and Mother failed to

demonstrate any benefit from the services she did attend. Golich noted that

parenting services were not a focus of Mother’s case plan because of Mother’s mental

health. Golich explained, “[I]f a person is currently using and currently in an

unstable mental health, they can’t really focus on learning how to appropriately

parent.” (Tr. 53.)

Golich testified to two tragic events that recently happened — the

death of N.M.’s father after he was released from prison and J.S.’s sexual assault

while in foster care by another child. Golich testified that it was even more vital for

Mother to engage in her services in light of this trauma because “if someone has

untreated or undertreated mental health, having tragic or difficult life experiences

can cause them to spiral. . . . Additionally, with substance use if somebody is sober

or trying to get sober, having a tragedy or an unexpected major event happen can

kick them back into using and sometimes even more than what they had been

previously.” (Tr. 64-65.)

Golich further testified that Mother is bonded with the children, but

she does not “know if it would be considered a healthy bond.” (Tr. 52.) At the time

of the hearing, J.S. was seven years old and N.M. was three years old and had been

living in the same home since they were initially brought into custody. Mother had

supervised visits scheduled for once a month, which Mother attended

inconsistently. Mother would not show up, and J.S. and N.M. would get very upset.

CCDCFS made multiple attempts to identify kinship caregivers for the

children. According to Golich, “[m]any of them have been either not interested or

ruled out by the Agency.” (Tr. 43.) At the time of the hearing, CCDCFS was

investigating the potential placement of all three children with out-of-state relatives

and began the ICPC process (Interstate Compact of the Placement of Children) with

a relative in Georgia. CCDCFS also considered E.C.’s interest in gaining custody of

N.M., but an early childhood mental assessment revealed that separating J.S. and

N.M. would not be in their best interest given the strong attachment they have and

the detrimental effect the children would experience if they were separated. Another

concern CCDCFS had was E.C.’s minimization of her late son’s prior violent behavior

in the presence of the children and her relinquishment of her visitation time with

N.M. to her son during their virtual visits. Golich acknowledged, however, that E.C.

had suitable housing and had weekly visits with N.M.

Mother also had the assistance of CCDCFS Family Advocate Danielle

Smith (“Smith”), who aided Mother with the engagement in her treatment services

for substance abuse and mental health, as well as monitoring progress and drug

screens. Smith repeatedly encouraged Mother to engage in her services since July

2022. Smith testified that Mother refused to engage, claiming either that she “just

wasn’t ready” or that “she didn’t need it.” (Tr. 69.) Mother also failed to submit to

drug screens despite weekly requests by Smith, and as a result, CCDCFS was unable

to verify Mother’s sobriety since July 2022. Smith further testified that she observed

Mother’s visitation and noted that Mother would focus her attention on J.S. and S.P.

and not on N.M., who was left to herself.

E.C. testified that Mother and N.M. were homeless so they stayed with

her, along with the children, from January 2021-July 2021, at which point Mother

left with the children. She further testified that J.S. did not get along with her

grandson who she takes care of and lives in her home, which was “one of the reasons

why [E.C.] can’t take [J.S.], because there will be a constant clash between them.”

(Tr. 77.) E.C. explained that she cannot accept J.S. because J.S. and her grandson

“would be at odds every day[.]” (Tr. 86.) She testified that she wanted N.M. out of

the foster care system because she has spent time with her and has grown to love

her. E.C. testified that she takes care of her 84-year old mother and is her mother’s

guardian. E.C. acknowledged the concerns for the children’s health if they were to

be separated and that the recommendation was important, but still felt that “the

right thing to do” would be to grant her custody of only N.M. (Tr. 81.)

The GAL recommended that the court grant permanent custody of

J.S. and N.M. to CCDCFS. On cross-examination, the GAL testified that the children

are bonded to each other and bonded with Mother. Following closing arguments,

the court indicated that it would take the matter under advisement and issue a

decision.

On December 21, 2023, the magistrate issued its decision

adjudicating the children neglected and dependent and granting permanent custody

of the children to CCDCFS. Mother filed objections to the magistrate’s decision and

CCDCFS opposed Mother’s objections. On March 8, 2024, the juvenile court

overruled Mother’s objections and adopted the magistrate’s decision. The court

found the children to be neglected and dependent, denied E.C.’s motion to

intervene, terminated all parental rights, and ordered the children placed in the

permanent custody of CCDCFS.6 In its extensive judgment entry, the court found

by clear and convincing evidence that it is in the best interests of the children to be

placed in the permanent custody of CCDCFS. The court further found that the

children have been in CCDCFS custody for 12 months or more of a consecutive 22-

month period and cannot or should not be placed with either parent. The court

adopted the permanency plan, which is permanent custody.

Mother now appeals the court’s judgment.

II. Law and Analysis

A. Bifurcation of the Adjudication and Disposition Hearings

In the first assignment of error, Mother argues that the court erred in

holding the disposition hearing immediately following the adjudication hearing

because she did not consent to the hearings being heard consecutively.

R.C. 2151.35 and Juv.R. 34 govern the manner for holding the

adjudicatory and dispositional hearings on an original complaint for custody. The

statute provides in pertinent part:

If the court at an adjudicatory hearing determines that a child is an

abused, neglected, or dependent child, the court shall not issue a

6 The court noted that its decision does not prevent E.C. and CCDCFS “from

exploring adoption options at a later date should the ICPC investigation of out of state

relatives be frustrated.” (Judgment Entry, Mar. 8, 2024.)

dispositional order until after the court holds a separate dispositional

hearing. The court may hold the dispositional hearing for an

adjudicated abused, neglected, or dependent child immediately after

the adjudicatory hearing if all parties were served prior to the

adjudicatory hearing with all documents required for the

dispositional hearing.

(Emphasis added.) R.C. 2151.35(B)(1).

Similarly, Juv.R. 34(A) provides in pertinent part:

Where a child has been adjudicated as an abused, neglected, or

dependent child, the court shall not issue a dispositional order until

after it holds a separate dispositional hearing. The dispositional

hearing for an adjudicated abused, neglected, or dependent child shall

be held at least one day but not more than thirty days after the

adjudicatory hearing is held. The dispositional hearing may be held

immediately after the adjudicatory hearing if all parties were served

prior to the adjudicatory hearing with all documents required for the

dispositional hearing and all parties consent to the dispositional

hearing being held immediately after the adjudicatory hearing.

(Emphasis added.)

Although Juv.R. 34(A) mirrors most of the language of the statute, it

contains an additional requirement before the trial court may hold the dispositional

hearing on the same day as the adjudicatory hearing — the parties must consent. In

re D.H., 2008-Ohio-3686, ¶ 23 (8th Dist.), citing In re J.H., 2006-Ohio-3237, ¶ 29

(12th Dist.) Additionally, the rule creates a mandatory requirement that the

dispositional hearing be held “at least one day” after the adjudicatory hearing if the

parties have not consented.

Here, Mother cites to the following line of cases from various

appellate districts in the state, including this district, in support of her position that

Juv.R. 34(A) and R.C. 2151.35(B) require that the adjudication and disposition

hearings must be bifurcated: In re Balazy, 2001 Ohio App. LEXIS 984 (8th Dist.

Mar. 8, 2001); In re G.M., 2015-Ohio-582 (9th Dist.); In re J.H., 2006-Ohio-3237

(12th Dist.); In re Monroe, 2004-Ohio-4988 (7th Dist.). Mother’s reliance on these

cases is misplaced.

These cases are factually distinguishable because either the parent

was not present at the adjudication hearing, the hearings proceeded without

parent’s counsel, the parent did not have notice of the adjudication and disposition

hearings, the parent expressed that they did not consent to the hearings being held

on the same day, there was no explicit demarcation between the adjudicatory and

dispositional stages, or dispositional testimony was introduced at the adjudicatory

stage of the proceedings. Rather, the circumstances of the instant case are

analogous to those of In re R.R., 2014-Ohio-5579 (2d Dist.).

In that case, the Second District Court of Appeals held that the

express consent of the parties was not necessary to satisfy the requirements of Juv.R.

34(A) because “[t]here was a definite bifurcation of the proceedings, as well as

implied, if not explicit, consent to holding the hearings on the same day” and the

appellant presented additional testimony on the merits when the disposition

hearing was continued. Id. at ¶ 51, 54.

In R.R., the parties, including appellant and her counsel, were present

at the beginning of the adjudication hearing when the magistrate discussed holding

the disposition hearing immediately after adjudication. Appellant’s counsel did not

object to the timing of the disposition hearing. The magistrate then heard

adjudication evidence, took a recess, and then made findings regarding the abuse

and dependency allegations. Afterwards, the magistrate indicated that it would start

with disposition that day and recess the proceedings in order to reconvene later. At

that point, the magistrate asked if there were any matters to discuss before

proceeding to disposition. Appellant’s counsel raised an issue pertaining to new law

on the timing of objections to adjudication findings, but did not raise any objections

to the timing of the disposition hearing. Id. at ¶ 53. Additionally, the parties were

aware of the intent to address both adjudication and disposition on the same day

because they discussed the procedure at a prior hearing. Id. at ¶ 52. As a result, the

R.R. Court found that the time to object was during the court proceedings, not on

appeal. Id. The court noted that appellant “was given an opportunity to present

witnesses and any other evidence regarding disposition when the dispositional

hearing was re-convened two months later. Accordingly, even if we found any error

(which we do not), the error would have been harmless.” Id. at ¶ 54.

Similarly, in the matter before us, the record clearly demonstrates

that there was a definite bifurcation of the adjudication and disposition hearings and

Mother, through her counsel, consented to holding the hearings on the same day.

The transcript of the proceedings reveals that at the beginning of the adjudication

hearing, Mother’s counsel requested a continuance, stating that Mother “is not here

today” and she does not “have a specific excuse,” but Mother “still has a pending

warrant,” so Mother’s counsel assumed “that has something to do with it.” (Tr. 5.)

CCDCFS opposed and the magistrate denied the continuance.

At the conclusion of CCDCFS’s portion of the adjudication hearing,

the magistrate asked Mother’s counsel if there were “any witnesses for

adjudication?” Mother’s counsel replied, “No, your Honor.” (Tr. 32.) The

magistrate then indicated that “[t]he Court is prepared to proceed to disposition on

all matters” and allowed counsel to make opening statements as to disposition. (Tr.

33.) Mother’s counsel waived opening statement. The magistrate then asked

CCDCFS to call its first witness for the disposition hearing. Mother acknowledges

as much within her appellate brief where her statement of the case contains separate

headings titled “Adjudication Trial” and “Disposition,” in which she describes the

testimony relating to each hearing. (Mother’s appellate brief, p. 6-7.) Additionally,

Mother had “[n]o objection to incorporating all testimony from adjudication into

disposition.” (Tr. 36.) At the conclusion of CCDCFS’s portion of the disposition

hearing, the magistrate asked Mother’s counsel if there were any “[w]itnesses?”

Mother’s counsel replied, “No, your Honor.” (Tr. 74.)

At no time did Mother’s counsel or any other party object to the

disposition hearing being held immediately after the adjudicatory hearing, nor was

any objection made prior to hearings when the court scheduled both adjudication

and disposition to be held on the same day, which was evidenced by the juvenile

court’s journal entry issued on November 2, 2023, stating that “[t]his matter is

continued to December 18, 2023 at 9:00am for Adjudication and Disposition.”

(Journal Entry, Nov. 2, 2023.) According to the entry, the matter was scheduled for

a hearing on November 2, 2023, but “Mother did not appear” and a pretrial was

held. (Journal Entry, Nov. 2, 2023.)

Based on the foregoing, it is clear that there was a definite bifurcation

of the proceedings, as well as consent by Mother to hold the hearings on the same

day. Mother was aware, prior to the hearing, of the court’s intent to address both

adjudication and disposition on the same day and chose not to attend the hearings.

Additionally, Mother was given an opportunity to present witnesses and any other

evidence regarding disposition. Thus, “even if we found any error (which we do not),

the error would have harmless.” In re R.R. at ¶ 54.7

Accordingly, the first assignment of error is overruled.

B. Permanent Custody

In the second assignment error, Mother argues that the juvenile

court’s decision to terminate her parental rights and grant permanent custody of the

children to CCDCFS is not supported by sufficient evidence and is against the

manifest weight of the evidence.

1. Standard of Review

At the outset, we recognize that the right to raise one’s own child is

“an ‘essential’ and ‘basic civil right.’” In re Murray, 52 Ohio St.3d 155, 156 (1990),

quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972). “Parents have a ‘fundamental

liberty interest’ in the care, custody, and management of the child.” Id., quoting

7 We note that while CCDCFS alternatively argues that Mother cannot demonstrate

plain error in the proceedings and Mother argues plain error in her reply brief, we decline

to address plain error and find the analysis in In re R.R. more persuasive.

Santosky v. Kramer, 455 U.S. 745, 753 (1982). This right, however, is not absolute.

“‘The natural rights of a parent are always subject to the ultimate welfare of the child,

which is the polestar or controlling principle to be observed.’” In re Cunningham,

59 Ohio St.2d 100, 106 (1979), quoting In re R.J.C., 300 So.2d 54, 58 (Fla.App.

1974).

The Supreme Court of Ohio has recently provided guidance on the

standard of review in permanent custody cases. The Court held:

[T]he proper appellate standards of review to 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 are the sufficiency-

of-the-evidence and/or manifest-weight-of-the-evidence standards, as

appropriate depending on the nature of the arguments presented by

the parties.

In re Z.C., 2023-Ohio-4703, ¶ 18.

Mother bases her argument on both the sufficiency-of-the-evidence

and manifest-weight-of-the-evidence standards. We note that while “sufficiency

and manifest weight are distinct legal concepts, a finding that a judgment is

supported by the manifest weight of the evidence necessarily includes a finding that

sufficient evidence supports the judgment.” In re R.M., 2024-Ohio-1885, ¶ 46 (8th

Dist.), citing In re P.S., 2023-Ohio-144, ¶ 30 (8th Dist.), citing In re C.N., 2015-Ohio-

2546, ¶ 9 (10th Dist.), citing State v. Howze, 2013-Ohio-4800, ¶ 10 (10th Dist.).

Thus, we will review this matter under the manifest-weight-of-the-evidence

standard.

The In re Z.C. Court reexplained the manifest-weight-of-the-evidence

standard as follows:

When reviewing for manifest weight, the appellate court must weigh

the evidence and all reasonable inferences, consider the credibility of

the witnesses, and determine whether, in resolving conflicts in the

evidence, the finder of fact clearly lost its way and created such a

manifest miscarriage of justice that the judgment must be reversed and

a new trial ordered. [Eastley v. Volkman, 2012-Ohio-2179, ¶ 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. “The

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.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80,

461 N.E.2d 1273 (1984). “‘If the evidence is susceptible of more than

one construction, the reviewing court is bound to give it that

interpretation which is consistent with the verdict and judgment, most

favorable to sustaining the verdict and judgment.”’ Id. at fn. 3, quoting

5 Ohio Jurisprudence 3d, Appellate Review, Section 603, at 191-192

(1978).

Id. at ¶ 14.

2. Permanent Custody — R.C. 2151.414

R.C. 2151.414 sets forth a two-prong analysis to be applied by a

juvenile court in adjudicating a motion for permanent custody. In re B.P., 2023-

Ohio-1377, ¶ 27 (8th Dist.), citing In re S.C., 2018-Ohio-2523, ¶ 20 (8th Dist.). The

first prong authorizes the juvenile court to grant permanent custody of a child to the

public agency if, after a hearing, the court determines, by clear and convincing

evidence, that any of the following factors apply: (a) the child is not abandoned or

orphaned, but the child cannot be placed with either parent within a reasonable time

or should not be placed with the child’s parents; (b) the child is abandoned; (c) the

child is orphaned, and there are no relatives of the child who are able to take

permanent custody; (d) the child has been in the temporary custody of one or more

public children services agencies or private child placing agencies for 12 or more

months of a consecutive 22-month period; or (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. R.C. 2151.414(B)(1)(a)-(e).

The second prong of the analysis requires the juvenile court to

determine, by clear and convincing evidence, that granting permanent custody to

the agency is in the best interest of the child. R.C. 2151.414(B)(1). “‘Clear and

convincing evidence is that measure or degree of proof which is more than a mere

“preponderance of the evidence,” but not to the extent of such certainty as is

required “beyond a reasonable doubt” in criminal cases, and which will produce in

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

established.’” In re Z.C. at ¶ 7, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),

paragraph three of the syllabus.

a. The R.C. 2151.414(B)(1) Factors and R.C. 2151.414(E)

In the instant case, the juvenile court made the findings under R.C.

2151.414(B)(1)(a) that the children could not or should not be placed with one of the

child’s parents. In cases where R.C. 2151.414(B)(1)(a) applies, R.C. 2151.414(E)

enumerates several factors for the court to consider. In re D.H., 2022-Ohio-2780, ¶

28 (8th Dist.), citing In re L.J., 2022-Ohio-2278, ¶ 43 (8th Dist.); see also In re L.C.,

2022-Ohio-1592, ¶ 47 (8th Dist.). Pursuant to R.C. 2151.414(E), if the court

determines, by clear and convincing evidence, that one or more of the (E)(1)-(16)

factors exist, the court shall enter a finding that the child cannot be placed with

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

Here, while the trial court found the presence of three (E) factors —

(E)(1), (2), and (4), our discussion focuses on (E)(4), the lack of commitment, since

the court is only required to find one of the R.C. 2151.414(E) factors present in order

to enter a finding that a child cannot or should be placed with a parent. In re D.H.

at ¶ 29, citing In re L.W., 2019-Ohio-1343 (8th Dist.). R.C. 2151.414(E)(4) provides

in pertinent part:

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

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

child when able to do so, or by other actions showing an unwillingness

to provide an adequate permanent home for the child

Mother argues that there was insufficient evidence of the “lack of

commitment” and the court lost its way in finding that Mother showed a lack of

commitment to her children because she is undergoing treatment and is taking her

medication. We disagree.

The evidence at the disposition hearing revealed that Mother

demonstrated a lack of commitment to the children through her lack of consistent

visitation with the children, her unwillingness to complete the necessary steps in her

case plan addressing her mental health and substance abuse problems, and her

unwillingness to provide an adequate permanent home for the children. Mother

was inconsistent in attending her regularly scheduled visitation with the children,

which led to the reduction in frequency of visits to once a month. Golich testified

that the inconsistent visits had a detrimental impact on the children, especially the

instances where Mother failed to appear for the scheduled visits. Mother also failed

to address her substance abuse and mental health issues. She was discharged from

the Hitchcock Sober Living Home in 2020 for violating their rules, which was prior

to the children’s removal in July 2022. At the time of disposition, Mother was not

engaged in any substance abuse treatment and had refused to complete drug screens

as requested by CCDCFS. Additionally, Mother tested positive for multiple illegal

drugs at S.P.’s birth in August 2023. According to Golich, when encouraging Mother

to engage in substance abuse treatment following S.P.’s birth, Mother replied, “I did

my work two years ago. I’m sober.” (Tr. 62.) With regard to Mother’s mental health

services, the record reveals that Mother has a number of diagnoses, including major

depressive disorder, schizophrenia, PTSD, ADHD, anxiety, and bipolar disorder.

Mother completed an assessment and received a prescription for medication, but

her engagement was very inconsistent with scheduled counseling sessions or group

sessions and she failed to demonstrate any benefit from the services she did attend.

With respect to Mother’s housing, Golich testified that Mother has refused to permit

access to the interior of her home since the summer of 2022, at which time it was

observed to be in deplorable condition, and Mother’s home has been infested with

cockroaches and odors of ammonia and cat urine.

Based on the foregoing, we find that the first prong of the permanent-

custody analysis was supported by competent, credible evidence and was not against

the manifest weight of the evidence. The record clearly and convincingly supports

the juvenile court’s determination under R.C. 2151.414(B)(1)(a) that the children

cannot or should not be placed with Mother within a reasonable time.

Having found that the juvenile court properly determined that at least

one of the R.C. 2151.414(B)(1) factors applies by clear and convincing evidence, we

must next determine whether the juvenile court appropriately found by clear and

convincing evidence that granting permanent custody to CCDCFS is in the children’s

best interest under R.C. 2151.414(D).

b. R.C. 2151.414(D)(1) — Best Interest Determination

The R.C. 2151.414(D)(1)(a)-(e) factors include (a) the interaction and

interrelationship of the child with the child’s parents, siblings, relatives, foster

caregivers, and out-of-home providers; (b) the child’s wishes, as expressed directly

by the child or through the child’s guardian ad litem; (c) the child’s custodial history;

(d) the child’s need for a legally secured permanent placement and whether that type

of placement can be achieved without a grant of permanent custody to the agency;

and (e) whether any of the factors set forth in R.C. 2151.414(E)(7)-(11) apply. A

juvenile court must consider each of the R.C. 2151.414(D)(1) factors when making a

permanent custody determination, but no one factor is given greater weight than the

others. In re Schaefer, 2006-Ohio-5513, ¶ 56. Only one of the factors set forth in

R.C. 2151.414(D)(1), however, needs to be resolved in favor of permanent custody.

In re D.H., 2022-Ohio-2780, at ¶ 46, citing In re G.W., 2019-Ohio-1533, ¶ 72 (8th

Dist.).

With regard to R.C. 2151.414(D)(1)(a), Golich acknowledged that

Mother bonded with the children, but it was not a healthy bond. During visitation,

Mother would focus her attention on J.S. and S.P. to the exclusion of N.M., who was

left to herself. Golich further testified that that the children “have really blossomed

since they’ve been in custody.” (Tr. 46.) There was also a relationship between N.M.

and E.C., but the court noted that pediatric psychologists determined that splitting

up the two children would threaten their long-term mental health. The court

considered all of the foregoing and still found in favor of permanent custody. This

finding is supported by clear and convincing evidence.

R.C. 2151.414(D)(1)(b) requires the court to consider the children’s

wishes as expressed directly or through their GAL. At the time of disposition, J.S.

was seven years old and N.M. was three years old. The GAL recommended

permanent custody, stating that permanent custody was in the children’s best

interests. The court’s finding is supported by clear and convincing evidence.

R.C. 2151.414(D)(1)(c) requires the court to consider the children’s

custodial history, including whether the children have been in placement for 12 or

more months of a consecutive 22-month period. Here, the court noted that the

children have remained in continuous CCDCFS custody since July 2022. Therefore,

the children have been in agency custody for 12 or more months of a consecutive 22-

month period at the time of disposition in December 2023. The evidence clearly and

convincingly supports this finding.

R.C. 2151.414(D)(1)(d) requires the court to consider the children’s

need for a legally secure placement and whether such can be achieved without a

grant of permanent custody. During the pendency of the proceedings, CCDCFS

attempted to identify relatives who might qualify to serve as alternative caregivers

for the children. According to Golich, “[m]any of them have been either not

interested or ruled out by the Agency.” (Tr. 43.) At the time of the hearing, CCDCFS

was investigating the potential placement of all three children with out-of-state

relatives and began the ICPC process with a relative in Georgia. Additionally, the

court acknowledged that E.C. wanted custody of N.M., but found that it is not in

N.M.’s best interest to be placed with E.C. because of the mental health assessment

and E.C.’s admission that J.S. and E.C.’s grandson “are at odds with each other.”

(Judgment Entry, Mar. 8. 2024.) This evidence clearly and convincingly supports

the court’s finding that the children’s need for secure placement cannot be satisfied

by Mother or E.C.

R.C. 2151.414(D)(1)(e) requires the trial court to consider whether any

of the factors in sections (E)(7) to (11) apply. While the court noted that Mother has

a child endangerment case with a warrant in the Cleveland Municipal Court, the

record does indicate if Mother was ever convicted and the court did not specifically

consider any of these factors. Therefore, R.C. 2151.414(D)(1)(e) does not appear to

apply to Mother.

Based on the foregoing, there is clear and convincing evidence in the

record to support the court’s determination that permanent custody to CCDCFS is

in the children’s best interest. Accordingly, we find that the court’s decision to grant

permanent custody is not against the weight of the evidence as Mother contends.

Therefore, the second assignment of error is overruled.

Accordingly, judgment is 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 issue out of this court directing the

common pleas court, juvenile division, 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.

MARY J. BOYLE, JUDGE

EILEEN A. GALLAGHER, P.J., and

MICHELLE J. SHEEHAN, J., CONCUR