The opinion
[Cite as In re F.G., 2024-Ohio-5709.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE F.G., ET AL. :
: No. 114025
[Appeal by the State] :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: December 5, 2024
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. AD22905807, AD22905809, AD22905814, AD22905815,
AD22905816
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellant.
Wegman Hessler Valore, Dean M. Valore, and Matthew O.
Williams, for appellee.
MARY J. BOYLE, P.J.:
This appeal involves a child-protection matter relating to five
children, who are siblings, before the Cuyahoga County Juvenile Court in Case Nos.
AD22905807, AD22905809, AD22905814, AD22905815, AD22905816.1 Plaintiff-
1 Because the filings in all five cases are nearly identical, citations to the record will
be to Case No. AD22905807 unless a more specific citation is warranted.
appellant, the Cuyahoga County Division of Children and Family Services (“the
agency”), appeals the decisions of the trial court denying the agency’s motions for
permanent custody and ordering the five children be placed in the legal custody of
their Mother with protective supervision. The agency raises one assignment of error
for our review:
The trial court’s judgments denying [the agency’s] motion for
permanent custody in favor of an order of legal custody to Mother with
an order of protective supervision are contrary to the evidence
presented at trial.
For the reasons set forth below, we affirm.
I. Facts and Procedural History
On June 7, 2022, Mother’s six children were removed from her home
pursuant to an ex parte telephonic order.2 The next day the agency filed a complaint
alleging that the children were abused, neglected, and dependent and requested a
dispositional order of temporary custody to the agency, which was granted after a
hearing that same day. The crux of the complaint was that the children witnessed
domestic violence between Mother and Father.3
At a hearing in September 2022, Mother stipulated to amended
allegations of the complaint and the children were adjudicated abused, neglected,
2 Mother’s oldest child who was eight years old at the time of removal, has a
different father, and is not subject to this appeal. The children at issue in this appeal were
between the ages of one and seven when they were removed.
3 Father was assigned an attorney, but Father did not participate in the case plan
or the proceedings.
and dependent and were ordered to be placed in the temporary custody of the
agency. The stipulations of fact indicated that Mother and Father have repeatedly
engaged in “behaviors” in the presence of their children, one of which required law
enforcement intervention, and that Mother has contact with their Father despite his
propensity for violence. (Agency Motion, R. 101.) In addition, two of the children
had been adjudicated neglected in 2015, and dependent in 2018, due in part to
domestic violence between Mother and Father.
In March 2023, the agency sought and was granted an extension of
the temporary custody orders because, although Mother had completed domestic
violence services, additional work was needed, and Father had “made no efforts to
address the anger management and domestic violence concerns which led to the
children’s removal.” (Agency Motion, R. 112.) The trial court noted in its entries
that “there has been some progress on the case plan by Mother but more progress
needs to be made in alleviating the cause for the removal of the child[ren] from the
home.” (Journal Entry, May 22, 2023, R. 137.)
In May 2023, the agency filed a case plan amendment seeking, in part,
to progress to unsupervised visits for Mother. That plan was rescinded, however,
after the now nine-year-old alleged that their Father was in Mother’s kitchen when
the children arrived for their first unsupervised visit. Then on October 25, 2023, the
agency filed a motion to modify temporary custody to permanent custody. The
motion alleged that Mother had continued to maintain a relationship with the
Father despite their long-standing pattern of domestic violence and despite
Mother’s completion of domestic violence services and that Mother’s ongoing
relationship with the Father “has caused a regression in the children’s clinical
progress.” (Agency Motion R. 149.)
Trial commenced upon the agency’s motions on April 12, 2024, and
May 17, 2024. The following is a summary of evidence that was presented at trial.
The agency established, by way of stipulated exhibits, that the two
oldest children were adjudicated as neglected and placed in agency custody in 2015
due in part to the domestic violence between Mother and Father. In 2018, another
incident led to the same two children being adjudicated dependent due in part to
domestic violence. In both cases, Mother was required to address issues of domestic
violence and mental health. Both times Mother completed the case plan, and the
children were reunified with Mother. (Agency trial exhibits Nos. 11-15, R. 109.)
The agency worker Sydney Petroski (“Petroski”) testified that she was
assigned to the case from August 2022 to July 2023, after another worker had the
case for a short period of time. She testified that she did not believe Mother
benefited from her previously completed domestic violence classes because she
continued her relationship with the children’s Father and had three more children
with him who were now the subject of these proceedings. Petroski testified the
current case was opened in May 2022, once again due to concerns of domestic
violence in the home between Mother and Father. Petroski alleged that in June
2022, the police responded to Mother’s home and Father was hiding in the house
and “the domestic violence concerns included using a weapon and strangulation.”
(Tr. 22.)
Petroski testified that following the children’s removal, the agency
developed and implemented a case plan in an effort to promote the permanency plan
of reunification. The case plan included services to address Mother’s issues with
domestic violence and mental health. Petroski testified that although Mother
completed the mental health assessment, Petroski felt that the Mother minimized
the effect domestic violence had on her life and did not provide true and accurate
information during the assessment. Petroski opined that because Mother had
expressed no concerns during the assessment, it did not include any
recommendations for her. Petroski testified that Mother needed counseling to
determine why there is a “pattern of domestic violence.” (Tr. 26, 45.)
Petroski testified that Mother maintained that she had no contact
with Father throughout the pendency of this case. Petroski, however, did not believe
Mother and claimed that she continued to hide her involvement with the children’s
Father. Petroski based this on the incident that led to the children’s removal in June
2022, and allegations from the nine-year-old that their Father was in their Mother’s
kitchen when the children arrived two hours early for an unsupervised visit in 2024.
Petroski testified that on the date of the alleged incident she dropped off the ten-
year-old (from a different father) and went inside. She testified the nine-year-old
was acting strange, but Petroski checked the house and the Father was not there.
She also waited outside to see if she observed the father, but she did not. Later that
evening, according to Petroski, the nine-year-old child reported to the foster parent,
who relayed to Petroski, that the Father was standing in Mother’s kitchen eating
grapes when the children arrived and then jumped out the window when he
observed the children. Petroski testified that she spoke with the nine-year-old, the
eight-year-old, and the seven-year-old, but ultimately only the nine-year-old child
seemed to have seen the Father that day. When Petroski spoke with Mother, she
denied that the Father had been there and said the children were lying. Petroski
testified that Mother lived on the second floor of a double home in Lakewood, Ohio.
On cross-examination, Petroski testified that she did not know if any
criminal charges were pending against the Father, that Mother was cooperative with
the agency, and that she completed domestic violence training for the fourth time.
She testified that Mother was willing to do family counseling. Petroski testified that
she had “nothing substantial” to believe that Mother was in contact with Father and
that there were no indications that Father was living there. (Tr. 45.) Nevertheless,
Petroski believed that Father jumped out of a two-story window as claimed by the
nine-year-old. Petroski testified that the children’s behaviors changed after the
incident. However, any time Petroski was pressed on cross-examination about
anything, like what the children said, which provider Mother used, and when the
children’s behaviors changed, she responded with, “I can’t recall exactly.” (Tr. 49,
51, 56.) When asked how many police reports were part of the case, she responded
again with, “I don’t recall.” (Tr. 58.) Petroski believed that the Father was charged
with domestic violence in the past but did not know for certain.4 She did not know
if the Father was on the lease, because she did not ask.
Next, the counselor of the nine-, eight-, and seven-year-old children
testified. She testified that she started seeing the children in August 2022. The
counselor diagnosed the children with post-traumatic stress disorder (“PTSD”) from
having witnessed “a lot of domestic violence.” (Tr. 67.) The children’s symptoms
included nightmares, behavioral outbursts, and anxiety. She met with the children
two to three times a month. The counselor testified that it took a year to build a
rapport with the children because “[t]hey’ve been told in the past not to tell anybody
about the stuff that’s happened at home.” (Tr. 69.) She testified that the children
revealed that their parents argued and sometimes it would get physical and then
they would hide in their bedrooms. The children reported that they were punched
by their Father and that they are afraid of him. She testified that the children “had
some bruises and whatnot when they came in.” (Tr. 69.) She testified that the
children trust her, their foster parents, and their teachers. They do not trust their
Mother to keep them safe.
The counselor testified that the foster mother called her because the
nine-year-old and the eight-year-old returned home from the unsupervised visit
with Mother upset and crying because their Father was there. She testified that the
children typically act out the day before they have to visit their Mother and that it
4 We note that a cursory review of the public dockets reveals only one misdemeanor
domestic violence case for Father in 2021, where he was found not guilty. No other cases
or charges are pending.
has gotten worse since the alleged incident with Father. The counselor also testified
that there was another incident with Father. She stated, “I believe they were
supervised at a park and there was some pizza and drinks brought to them, and they
saw dad delivering it. They said that when he saw them, that he took off running
and left.” (Tr. 76.) Again, it was the nine-year-old who relayed this information.
She also opined that family counselling would be ineffective because she felt the
children would not talk in front of Mother. The counselor testified that the children
do not want to go home. But they enjoy their visits with their Mother.
Next, Mother was called to testify. She testified that Father no longer
lived with her and he moved out June 8, 2022, the day after the children were
removed. She testified that he was never on the lease. She explained that Father
had a car registered to her address, but the car belonged to his sister. She indicated
that she receives lots of mail for him there and that she cannot control what he does.
Mother testified that she throws out the mail. Mother testified that she still has a
relationship with some of the Father’s family, but only the ones who support her
side.
Mother testified that she has a mental health provider who prescribed
her medication for PTSD and anxiety stemming from the domestic violence and the
death of one of her children. She went once a month to that provider and she was
compliant with her medications, which have helped her. Mother testified that the
domestic violence occurred off and on and that previously Father completed the case
plan and would change for a while and then it would start again. She testified that
prior to the children’s removal in 2022, she tried to work things out with their
Father. Mother testified that originally the abuse was physical but then it changed
to mental abuse.
Mother testified to what she learned from the domestic violence
classes and that she is keeping Father out of her life because it is “the right thing for
me and my children. — Keep us both safe.” (Tr. 105.) She testified that Father is
using her address and taking out loans and credit cards with her information. She
said she has reported it and is waiting to hear back. She testified that she is working
six days a week as a housekeeper at a motel within walking distance of her house
and that is why she cannot move. She does not own a car. Mother was adamant that
she does not have a relationship with Father and challenged the agency to do “pop-
up visits” whenever they want.
Mother testified that her children should be able to trust her and she
understands that they do not because they have witnessed things they should not
have witnessed. She stated that for a time she was seeing a counselor once a week
through Ohio Guidestone and that it helped. Mother also testified that she never
rejected family counseling and that she has asked for it repeatedly. She testified that
she is not in a relationship with anyone because “[r]elationships are headaches.”
(Tr. 112.) Mother testified that if she was smarter when she was younger, she would
not be in this situation with the Father. She testified that she is working to better
herself and that “nobody’s gonna come before my children.” (Tr. 122.) Mother also
testified that she did attempt to get a restraining order but the police department
explained that she was not eligible because nothing physical happened and “they
cannot just order a restraining order on [Father] just out of the blue.” (Tr. 126.)
Finally, Mother’s current agency worker Arlethia Levison (“Levison”)
testified that she was assigned to Mother’s case in January 2024, and that temporary
custody would be expiring on June 6, 2024. Levison felt that Mother did not benefit
from the domestic violence courses because Father had a car registered to her
address. Although Mother testified that the car belonged to one of Father’s sisters,
Levison could not verify the sister. Levison also claimed that Mother was being
untruthful when she testified that she was on antidepressants and anti-anxiety
medications. Levison testified that Mother only informed her that she was on blood
pressure medications.
Levison testified that at the first visit, Mother was very upset and told
the children they needed to stop lying to the agency because that is why they are not
at home. Levison testified that Mother has not taken responsibility for her part in
the children’s removal. Levison testified that she went to the Mother’s home once.
She observed that she had three race car beds for the boys and one double bed for
the girls. She indicated that one bed for the girls was not adequate.
On cross-examination, Levison admitted she has never observed the
Father or the car at Mother’s home. She is concerned because Father’s car is
registered to Mother’s address. Levison testified that she has never seen bruises on
Mother. She said Mother is adamant that Father does not live there and no one has
made Levison aware that Father is living there.5
Levison did not make a referral for family counseling, stating that the
counselor recommended against it and that the Mother was inconsistent with her
own mental health appointments. She admitted, however, that Mother worked with
a therapist at Ohio Guidestone for over a year and six months and was discharged
in March 2024. Levison testified that she did not think family counseling would
benefit Mother or the children. She based this belief on the first interaction she
observed with the Mother and children.
At the close of the agency’s case, the juvenile court asked the parties
for written closing arguments. After reviewing the briefs submitted, the juvenile
court denied the agency’s motion for permanent custody, terminated temporary
custody, and ordered the children committed to the legal custody of the Mother with
protective services, stating, in pertinent part:
The court heard sworn testimony and accepted evidence.
The Guardian ad Litem recommends that the Court deny the Motion to
Modify Temporary Custody to Permanent Custody and continued
Temporary Custody is in the child[ren]’s best interest.
The Court reviewed all written closing arguments submitted to the
Court.
5 We again note for the record that a cursory review of the public dockets reveal
that Father has recent traffic tickets and his address is not the Mother’s address.
Furthermore, the clerk of courts sent notices to Father’s current address, which is not the
Mother’s address.
It is therefore ordered that the previous order placing the Child[ren] in
the Temporary Custody of the [agency] is terminated as it is no longer
in the child[ren’s] best interest.
It is further ordered that the child[ren are] committed to the Legal
Custody of Mother, with Protective Supervision to [the agency].
Furthermore, the parties shall have no contact with Father.
(Journal Entry, June 10, 2024, R. 251.)
The agency appeals the juvenile court’s decision.6
II. Law and Analysis
Initially, 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 (1972); In re B.B.C., 2024-Ohio-588, ¶ 14
(8th Dist.). “Parents have a ‘fundamental liberty interest’ in the care, custody, and
management of the child.” Id., quoting 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).
In the sole assignment of error, the agency asserts that the juvenile
court erred in granting legal custody of the children to the Mother and denying the
agency’s motion for permanent custody. The agency argues that the judgments are
against that manifest weight of the evidence.
6 The agency moved for a stay of the trial court’s judgment pending this appeal,
which this court granted.
Manifest Weight Standard
Recently, the Ohio Supreme Court reexplained the manifest-weight-
of-the-evidence standard in a parental rights case 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, 132 Ohio St.3d 328, 2012-
Ohio-2179, 972 N.E.2d 517, ¶ 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, 10 Ohio B. 408, 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).
In re Z.C., 2023-Ohio-4703, ¶ 14.
The agency’s argument is twofold. First, the agency contends that it
established by clear and convincing evidence the factors set forth in
R.C. 2151.414(B)(1) and the factors set forth under R.C. 2151.414(D)(1). Therefore,
it was in the best interest of the children to grant permanent custody to the agency.
Second, the agency asserts that it established by clear and convincing evidence
several conditions set forth in R.C. 2151.414(E) and all of the factors set forth in
R.C. 2151.414(D)(2), which in turn requires the juvenile court to find that it was in
the best interest of the children to grant permanent custody to the agency. We find
both arguments unpersuasive.
Permanent Custody – R.C. 2151.414(B)(1)
R.C. 2151.414(B)(1) establishes a two-part test for courts to apply
when determining whether to grant a motion for permanent custody. A juvenile
court may grant a public child services agency’s motion for permanent custody if it
determines, by clear and convincing evidence, that (1) any one of the five factors set
forth in R.C. 2151.414(B)(1)(a)-(e) exists, and (2) permanent custody is in the best
interest of the children — taking into consideration the factors set forth in
R.C. 2151.414(D)(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.
R.C. 2151.414(B)(1)(a)-(e) sets forth the factors the agency must
prove: (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. See In re J.S., 2024-Ohio-3310, ¶ 42 (8th Dist.).
The record in this case reflects that all five children were removed and
placed in agency custody on June 7, 2022, and the order for temporary custody was
extended in May 2023. At the time the motion for permanent custody was filed,
October 25, 2023, the children had been in agency custody for 12 or more months
of a consecutive 22-month period satisfying R.C. 2151.414(B)(1)(d). Because the
findings under R.C. 2151.414(B)(1)(a)-(d) are alternative findings, each is
independently sufficient to establish one prong of the two-part test to grant a motion
for permanent custody. In re Dalton, 2007-Ohio-5805 (5th Dist.); In re K.C., 2024-
Ohio-2081, ¶ 45 (10th Dist.); In re A.J., 2024-Ohio-3291, ¶ 42 (5th Dist.). This
finding alone, in conjunction with a best interest finding, is sufficient to support the
grant of permanent custody. In re Calhoun, 2008-Ohio-5458 (5th Dist.); In re K.C.
Having determined that the agency established that the children have
been in the temporary custody of the agency for 12 or more months of a consecutive
22-month period, we turn to the agency’s arguments that it was in the best interest
of children to grant permanent custody to the agency pursuant to
R.C. 2151.414(D)(1).
Best Interest Determination — R.C. 2151.414(D)(1)
R.C. 2151.414(D)(1) requires that the juvenile court consider all
relevant factors in determining whether the children’s best interests would be served
by granting the permanent custody motion. These 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 (“GAL”); (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.
R.C. 2151.414(D)(1). 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) 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.).
The agency asserts that several of the factors listed in
R.C. 2151.414(D)(1) were proved by clear and convincing evidence. Specifically, the
agency claims that Mother minimized the domestic violence and the effects it had
on the children; that the children did not feel their Mother could keep them safe;
and that the Mother blamed the children for their removal. According to the
children’s attorney, the two older children wanted Mother’s parental rights
terminated and to remain with their foster parents. The GAL for the children
recommended that the children remain in temporary custody of the agency. Based
on these reasons, the agency maintains that it established that it was in the best
interest of the children for the agency to be granted permanent custody and that the
juvenile court’s denial of permanent custody was against the manifest weight of the
evidence.7 We disagree.
Despite what the agency argues, the testimony reveals that Mother
completed everything in the case plan that was within her control. Further, Mother
demonstrated that she learned from her domestic violence classes and how domestic
violence affects her children. Mother testified that she did protect the children from
their Father, standing in the way of him to her own detriment. Yet the agency and
the children’s GAL seemed determined to blame the Mother for the abuse she
suffered, as noted by the following exchange:
[Agency]: You identified the father as the bad guy. Do you acknowledge
what role you played in the children’s removal almost two years ago?
[Mother]: I did protect them. That’s why I was getting abused. They
wasn’t getting abused. I was getting abused. . . . Them kids was never
abused. The kids have been abused since they’ve been in the County.
My daughter had stitches in her eye. My other daughter had a hairline
7 The agency asserts that the juvenile court did not apply the best interest factors
because the judgment entry makes no mention of the statutory considerations. However,
the Ohio Supreme Court held that “R.C. 2151.414(D)(1) does not require a juvenile court
to expressly discuss each of the best-interest factors in R.C. 2151.414(D)(1)(a) through (e).
Consideration is all the statute requires. Although a reviewing court must be able to
discern from the magistrate’s or juvenile court’s decision and the court’s judgment entry
that the court satisfied the statutory requirement that it consider the enumerated factors,
we may not graft onto the statute a requirement that the court include in its decision a
written discussion of or express findings regarding each of the best-interest factors.” In
re A.M., 2020-Ohio-5102, ¶ 31.
fracture in her hand. My son came with a big skid on his face, and knots
on their head, bruises. They got scratches on them every time they
come. That never happened in my household. I protect my kids. I
would never let anybody harm my kids.
(Tr. 119-120.)
The GAL for the children then asked Mother: you responded to a
question posed by [the prosecutor], “I shouldn’t have never let him hurt
me.” Do you remember saying that?
[Mother]: Yes.
[GAL]: Okay. But you did, will you agree?
[Mother]: I did.
[GAL]: Okay. Why did you? Why did you allow him to hurt you?
[Mother]: I guess I wasn’t strong enough or I thought I wasn’t strong
enough at that time[.]
(Tr. 123-124.)
The record is clear that Mother has never been accused of domestic
violence, and we find it troubling that Mother was blamed for Father’s behavior.
Also troubling is that the counselor testified that she observed “bruises and whatnot”
on the children when she began counseling them. Thereafter, counselor assumed
that the children were truthful when they told her that their Father punched them.
However, the children started counseling two months after their removal from
Mother and Father, which corroborates Mother’s testimony that the children had
been hurt since their removal, and not at the hands of Mother or Father. Finally,
Mother adamantly denied having contact with Father, and there was no credible
evidence to suggest otherwise.
The Ohio Supreme Court has explained that the
“[w]eight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of
the issue rather than the other. It indicates clearly to the [factfinder]
that the party having the burden of proof will be entitled to their
[judgment], if, on weighing the evidence in their minds, they shall find
the greater amount of credible evidence sustains the issue which is to
be established before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.’”
Eastley v. Volkman, 2012-Ohio-2179, ¶ 12, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997), quoting Black’s Law Dictionary (6th Ed. 1990); In re JA.B.,
2024-Ohio-453, ¶ 34 (8th Dist.). Furthermore, this court has stated that
“[t]he discretion which a trial court enjoys in custody matters 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
concerned. In re Satterwhite, 8th Dist. Cuyahoga No. 77071, 2001-
Ohio-4137. The knowledge a trial court gains through observing the
witnesses and the parties in a custody proceeding (i.e., observing their
demeanor, gestures and voice inflections and using these observations
in weighing the credibility of the proffered testimony) cannot be
conveyed to a reviewing court by a printed record. Id., citing Trickey
v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 772 (1952).”
In re JA.B., at ¶ 36, quoting In re C.T., 2006-Ohio-1944, ¶ 15 (8th Dist.).
Here, the juvenile court clearly considered all of the evidence and
arguments of counsel and determined that the agency did not prove by clear and
convincing evidence that permanent custody was in the best interest of the children.
And after reviewing the entire record, we cannot say the juvenile court lost its way
when it denied the agency’s motion for permanent custody under
R.C. 2151.414(D)(1).
Permanent Custody — R.C. 2151.414(D)(2)
In their second argument, the agency maintains that the juvenile
court was required to grant the motion for permanent custody under
R.C. 2151.414(D)(2). R.C. 2151.414(D)(2) dictates that permanent custody is in the
best interest of the children and the court shall commit the children to the
permanent custody of a public children services agency if all of the following apply:
(a) The court determines by clear and convincing evidence that one or
more of the factors in division (E) of this section exist and the child
cannot be placed with one of the child’s parents within a reasonable
time or should not be placed with either parent.
(b) The child has been in an agency’s custody for two years or longer,
and no longer qualifies for temporary custody pursuant to division (D)
of section 2151.415 of the Revised Code.
(c) The child does not meet the requirements for a planned permanent
living arrangement pursuant to division (A)(5) of section 2151.353 of
the Revised Code.
(d) Prior to the dispositional hearing, no relative or other interested
person has filed, or has been identified in, a motion for legal custody of
the child.
The agency asserts that it proved several of the conditions listed in R.C. 2151.414(E),
as well as the remaining factors set forth in R.C. 2151.414(D)(2); therefore, a grant
of permanent custody to the agency was required.
According 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. 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., 2022-Ohio-2780, ¶ 29, citing
In re L.W., 2019-Ohio-1343 (8th Dist.). Nevertheless, the juvenile court still must
make a best interest determination. R.C. 2151.414(B)(2).
The agency maintains that it established the following factors set
forth in R.C. 2151.414(E):
(1) Following the placement of the child outside the child’s home and
notwithstanding reasonable case planning and diligent efforts by the
agency to assist the parents to remedy the problems that initially
caused the child to be placed outside the home, the parent has failed
continuously and repeatedly to substantially remedy the conditions
causing the child to be placed outside the child’s home. In determining
whether the parents have substantially remedied those conditions, the
court shall consider parental utilization of medical, psychiatric,
psychological, and other social and rehabilitative services and material
resources that were made available to the parents for the purpose of
changing parental conduct to allow them to resume and maintain
parental duties.
...
(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[.]
...
(10) The parent has abandoned the child.
...
(15) The parent has committed abuse as described in section 2151.031
of the Revised Code against the child or caused or allowed the child to
suffer neglect as described in section 2151.03 of the Revised Code, and
the court determines that the seriousness, nature, or likelihood of
recurrence of the abuse or neglect makes the child’s placement with the
child’s parent a threat to the child’s safety.
(16) Any other factor the court considers relevant.
The agency argues that Mother failed to remedy the conditions that
caused the children to be removed from her home. Specifically, the agency alleges
that Mother remained in an abusive relationship with the children’s Father,
repeatedly choosing Father over the children and she did not resolve her mental
health issues. The agency alleges that Father abandoned the children and the
children were afraid of their Father and did not trust their Mother to protect them.
The record, however, reflects that the Mother completed multiple
domestic violence programs and could clearly articulate what she learned regarding
the patterns of an abusive partner and testified that she no longer would allow
herself to be treated that way. Further, Mother testified that she had not had any
contact with the Father since the children were removed nearly two years earlier.
Although there was some testimony that the Father was observed eating grapes in
the Mother’s kitchen and then jumped out a two-story window when the children
arrived for a visit, this testimony was not firsthand knowledge, nor corroborated by
anyone with firsthand knowledge, nor was it particularly credible. Finally, the case
plan was implemented with the goal of reunification and the evidence revealed that
the Mother had been engaging in counseling, had been taking her medications as
prescribed, and had been completing everything in her case plan that was in her
control.
After reviewing the evidence in this case, we cannot say that the
juvenile court’s judgment was against the manifest weight of the evidence when it
denied the agency’s motion for permanent custody, terminated temporary custody,
and placed the children in the legal custody of their Mother with protective
supervision.
Accordingly, the agency’s sole assignment of error is overruled.
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, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
ANITA LASTER MAYS, J., CONCUR