The opinion
[Cite as In re S.K., 2023-Ohio-4106.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
HIGHLAND COUNTY
In the Matter of: : Case No. 23CA7
S.K. : DECISION AND
JUDGMENT ENTRY
Dependent Child. :
RELEASED 11/8/2023
______________________________________________________________________
APPEARANCES:
Steven H. Eckstein, Washington Court House, Ohio, for appellants.
Anneka P. Collins, Highland County Prosecutor, and Molly Bolek, Highland County
Assistant Prosecutor, Hillsboro, Ohio, for appellee.
______________________________________________________________________
Hess, J.
{¶1} The parents of S.K. appeal a judgment of the Highland County Court of
Common Pleas, Juvenile Division, granting permanent custody of the child to the
Highland County Department of Job & Family Services, Children Services Division (the
“Agency”). The parents present one assignment of error asserting the permanent custody
award was against the manifest weight of the evidence. For the reasons which follow,
we overrule the assignment of error and affirm the juvenile court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶2} On October 8, 2021, the Agency filed a complaint alleging that S.K., d.o.b.
9/27/21, was an abused, neglected, and dependent child. The complaint alleged that the
Agency had received a report that Mother and the child tested positive for THC when the
child was born and that both parents refused the Agency’s request for a drug screen. The
complaint also alleged that Father claimed the parents had supplies for the baby, but an
Highland App. No. 23CA7 2
Agency employee visited the parents’ home and observed “very little basic needs for the
baby: such as 3 diapers, 1 pack of wipes, clothing, 1 bottle, and 1 formula.” The complaint
requested a grant of emergency temporary custody to the Agency or a finding and
appropriate disposition pursuant to R.C. 2151.353 or 2151.33(B)(1). The Agency also
filed a motion for emergency temporary custody, which the juvenile court granted that
day.
{¶3} On October 12, 2021, the juvenile court conducted a hearing and ordered
that the child remain in the temporary custody of the Agency. On October 27, 2021, the
Agency filed a family case plan, which the parents had signed. On November 18, 2021,
the parents waived the right to a contested adjudicatory hearing, admitted the facts in the
complaint were true, and admitted the child was dependent. The juvenile court found the
child to be dependent, dismissed the abuse and neglect counts of the complaint, and
approved the case plan.
{¶4} The parents waived the right to a separate contested dispositional hearing
and agreed that temporary custody of the child be vested in the Agency until October 8,
2022, unless a timely motion was filed with the court. On August 23, 2022, the Agency
filed a motion for permanent custody pursuant to R.C. 2151.414(B)(1)(a) and
2151.415(A)(4). The court scheduled a hearing on the motion for October 20, 2022.
Mother requested a continuance, and the court rescheduled the hearing for January 9,
2023. The Agency then filed a motion to amend its permanent custody motion to request
permanent custody pursuant to R.C. 2151.414(B)(1)(d). The juvenile court granted the
motion. The parents did not appear at the hearing on January 9, 2023, due to alleged
transportation issues and the court again continued the matter.
Highland App. No. 23CA7 3
{¶5} The permanent custody hearing took place on March 29, 2023, and May
17, 2023. On the first day of the hearing, the parents appeared. The court heard
testimony from Father regarding a motion he filed to withdraw his admission to
dependency and overruled it. The court then heard testimony on the permanent custody
motion from Delores Colville, Lauren Hall, and Teresa Smith. The second day of the
hearing, the parents did not appear due to alleged transportation issues. The court spoke
to them via phone and offered them transportation to the hearing. The parents declined,
preferring to appear by phone. The parties stipulated that the child’s paternal great-
grandmother, who was unable to attend the hearing, would have testified that she
observed the parents taking appropriate care of the child prior to the child’s removal on
October 8, 2021, and that the parents were working hard to provide a proper home and
living environment for the child. The court then let Mother testify via phone. Father did
not want to testify, and the parents elected to not participate in the hearing any further
after Mother’s testimony. The court terminated the call and then heard additional
testimony from Colville, Smith, the child’s foster mother, and the child’s guardian ad litem.
{¶6} Colville, a visitation monitor at the Highland County Family Advocacy
Center, testified the parents had 74 opportunities to visit the child at the center. Mother
attended 15 visits, and Father attended 14 visits. Reasons the parents gave for missing
visits were transportation issues, illness, and work schedule conflicts. Colville testified
that during visits she observed Mother engaging in play activities with and providing
general care to the child, and she observed Father holding and being “very loving toward”
the child.
Highland App. No. 23CA7 4
{¶7} Agency investigator and caseworker Lauren Hall testified that she was
assigned to the case from the time the Agency filed the complaint until March 2022. She
developed the case plan and reviewed it with the parents on October 27, 2021, before
they signed it. Among other things, the plan required that the parents complete a drug
and alcohol assessment, complete a mental health assessment, have stable income and
housing, and submit to random drug screens. Hall never received information about the
parents initiating any services and testified that she was unable to maintain regular
contact with them. At the time of the child’s removal, the parents were living with Father’s
grandparents in Lynchburg, Ohio. Hall made unsuccessful attempts to contact the
parents there, and in February 2022, the grandparents told Hall that the parents were no
longer residing with them. Subsequently, the parents told Hall that they were living with
Mother’s father in Ripley, Ohio, but would not give Hall the address. The parents refused
Hall’s requests for random drug screens at least nine times. Father did submit to a screen
on October 27, 2021, and tested positive for methamphetamine and amphetamine.
{¶8} Agency caseworker Teresa Smith was assigned to the case in August 2022.
Smith reviewed the case plan with the parents, but they did not report the completion of
case plan services. Smith identified transportation as a barrier to the parents engaging
in services. Smith testified that she told the parents that FRS offers transportation and
offered to transport the parents herself, but they did not take her up on the offer. On
cross-examination, Smith admitted the parents did ask her for transportation assistance
on one occasion and that she could not help due to a scheduling conflict. Smith also
acknowledged that FRS did not provide services to Brown County, where Ripley is
located, until January 2023.
Highland App. No. 23CA7 5
{¶9} Smith testified that the parents did not report any employment or other
income sources to her. Smith testified that when she became the family’s caseworker,
the parents’ reported address was in Lynchburg, and she tried to contact them there. In
October 2022, she learned their actual address in Ripley and went there. The exterior of
the home had black mildew on it, and there were piles of wood or boards and other debris
outside the home. Smith was denied access to the interior of the home. When Smith
returned to the home in February 2023, it did not look any better, and there was a foul
odor by the front door. Smith was again denied access to the interior. Shortly before the
second day of the permanent custody hearing, the parents gave Smith a new address.
She tried to do a home visit but was unable to contact the parents even though there was
a vehicle in the driveway and a television on in the home. Smith testified that the parents
refused her requests for random drug screens, including a request she made the first day
of the permanent custody hearing. Smith testified that the child had been with the same
foster family throughout the case, and based on Smith’s observations, the child had
bonded with the foster parents and siblings. Smith testified that the Agency had not
identified any appropriate relative placement options.
{¶10} The child’s foster mother testified that the child had been placed in her home
since October 8, 2021, when the child was a couple days old. The foster mother testified
that the child was doing well, that she was bonded with the child, and that the foster
parents wanted to adopt the child if the Agency got permanent custody. She testified that
the parents had no contact with the child outside of scheduled visits at the Family
Advocacy Center.
Highland App. No. 23CA7 6
{¶11} Dennis Kirk, the guardian ad litem, testified the child was too young for him
to interview. Kirk observed interactions between the child and the foster mother. The
child seemed at ease, sought out the foster mother, and “[s]tayed pretty close to her.” He
recommended that the court grant the Agency permanent custody because the parents
“barely visited” the child and had “not pursued the goals on the case plan.” Kirk testified
that his opinion could change if the parents completed the case plan.
{¶12} Mother testified that the parents moved to a new home in Hillsboro, Ohio,
about a week before the second day of the permanent custody hearing. They moved to
be closer to and provide a better environment for the child. Mother testified that she would
allow the caseworker in the new home, which was in a great neighborhood, had two
bedrooms, and was “beautiful inside and out.” Prior to the move, Mother was
unemployed. After the move, she did odd jobs she found on Facebook and earned about
$70 in a week. Mother testified that she was trying to get a full-time job. Mother testified
that Father was employed at Candle-lite in 2021 or 2022 and worked on a farm for a week
in January 2023. Father was not currently working. He was a full-time student, and
Mother expected him to graduate in two months and get a paralegal job. The parents
were using Father’s student loan money to pay rent.
{¶13} Mother believed she could complete the case plan by October 2023. She
inquired about parenting classes at Southern State a week or two before the second day
of the permanent custody hearing but needed the Agency to make a referral so she could
start the classes. Mother scheduled mental health and drug and alcohol assessments in
Brown County but had to cancel them due to the move and transportation issues. She
still intended to complete the assessments. Mother admitted that she had not submitted
Highland App. No. 23CA7 7
to any drug screens but testified she only refused to submit to a drug screen on one
occasion. Mother testified that her last visit with the child was March 1, 2023. She
testified that the parents have had a lot of transportation issues, which impacted visitation,
and that she was actively trying to resolve the problem. Mother testified that the parents
had a car but it needed repairs. At Smith’s suggestion, Mother contacted a Goodwill
outlet to try to get assistance. Mother also contacted FRS, but the parents could not
afford its transportation services.
{¶14} On May 22, 2023, the court issued a judgment entry granting the Agency
permanent custody of the child. The court found that the child had been in the temporary
custody of the Agency for 12 or more months of a consecutive 22-month period for
purposes of R.C. 2151.414(B)(1)(d). The court also found that it was in the best interest
of the child to award permanent custody to the Agency.
II. ASSIGNMENT OF ERROR
{¶15} The parents present one assignment of error: “The trial court’s grant of
permanent custody to the [Highland] County Job and Family Services Children’s Division
was against the manifest weight of the evidence.”
III. MANIFEST WEIGHT OF THE EVIDENCE
{¶16} In their sole assignment of error, the parents contend that the permanent
custody award was against the manifest weight of the evidence. The parents assert that
Mother’s testimony “was so strong that it countered the evidence of the Agency so that
the trial court could not reasonably have formed the belief that permanent custody to the
Agency was in the best interest of the child.” The parents direct our attention to Mother’s
testimony about their new home, Mother’s income, and her expectation that Father will
Highland App. No. 23CA7 8
graduate and become a paralegal. The parents also direct our attention to Mother’s
testimony about transportation issues, efforts to complete parenting classes and required
assessments, and only refusing to submit to a random drug screen one time. In addition,
the parents assert that “[f]urther contradicting the weight of the Agency’s evidence” was
the stipulation that the child’s paternal great-grandmother would have testified that prior
to the child’s removal, “she observed the parents taking proper care of the child.”
A. Standard of Review
{¶17} “A reviewing court will not reverse a trial court’s judgment in a permanent
custody case unless it is against the manifest weight of the evidence.” In re C.S., 4th
Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21. We have explained:
“To determine whether a permanent custody decision is against the
manifest weight of the evidence, an appellate court must weigh the
evidence and all reasonable inferences, consider the credibility of the
witnesses, and determine whether in resolving evidentiary conflicts, the trial
court clearly lost its way and created such a manifest miscarriage of justice
that the judgment must be reversed and a new trial ordered.” [In re T.J., 4th
Dist. Highland Nos. 15CA15, 15CA16, 2016-Ohio-163,] ¶ 25, citing Eastley
v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 20.
In reviewing evidence under this standard, we defer to the trial court’s
determinations of matters of credibility, which are crucial in these cases,
where demeanor and attitude are not reflected well by the written record.
Eastley at ¶ 21; Davis v. Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d
1159 (1997).
In a permanent custody case the dispositive issue on appeal is “whether the
trial court’s findings * * * were supported by clear and convincing evidence.”
In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 43; 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.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus; State ex rel. Pietrangelo v. Avon Lake, 149 Ohio St.3d 273,
2016-Ohio-5725, 74 N.E.3d 419, ¶ 14. “[I]f the children services agency
presented competent and credible evidence upon which the trier of fact
Highland App. No. 23CA7 9
reasonably could have formed a firm belief that permanent custody is
warranted, then the court’s decision is not against the manifest weight of
the evidence.” In re R.M., 2013-Ohio-3588, 997 N.E.2d 169, ¶ 55 (4th Dist.).
(First alteration added.) Id. at ¶ 21-22.
B. Statutory Framework and Analysis
{¶18} Under R.C. 2151.414(B)(1), a juvenile court may grant permanent custody
to a public children services agency if the court determines by clear and convincing
evidence that (1) any of the circumstances in R.C. 2151.414(B)(1)(a) through (e) apply,
and (2) it is in the best interest of the child. In this case, the juvenile court found that R.C.
2151.414(B)(1)(d) applied, i.e., “[t]he child has been in the temporary custody of one or
more public children services agencies * * * for twelve or more months of a consecutive
twenty-two-month period * * *.” The parents do not dispute that the child was in the
temporary custody of the Agency for the requisite time; therefore, we must affirm the
permanent custody award unless the juvenile court’s best interest determination is
against the manifest weight of the evidence.
{¶19} R.C. 2151.414(D)(1) states:
In determining the best interest of a child * * * the court shall consider all
relevant factors, including, but not limited to, the following:
(a) The interaction and interrelationship of the child with the child’s parents,
siblings, relatives, foster caregivers and out-of-home providers, and any
other person who may significantly affect the child;
(b) The wishes of the child, as expressed directly by the child or through the
child’s guardian ad litem, with due regard for the maturity of the child;
(c) The custodial history of the child, including whether the child has been
in the temporary custody of one or more public children services agencies
* * * for twelve or more months of a consecutive twenty-two-month period *
* *;
Highland App. No. 23CA7 10
(d) The child’s need for a legally secure permanent placement and whether
that type of placement can be achieved without a grant of permanent
custody to the agency;
(e) Whether any of the factors in divisions (E)(7) to (11) of this section apply
in relation to the parents and child.
For the purposes of division (D)(1) of this section, a child shall be
considered to have entered the temporary custody of an agency on the
earlier of the date the child is adjudicated pursuant to section 2151.28 of the
Revised Code or the date that is sixty days after the removal of the child
from home.
No one factor has “greater weight or heightened significance.” In re C.F., 113 Ohio St.3d
73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57.
1. Interactions and Interrelationships of the Child
{¶20} There is evidence to support the juvenile court’s finding that the child
“bonded with and adjusted well to [the child’s] current foster family” and that the foster
parents were willing to adopt the child. While the child had some relationship with the
parents during the proceedings, there was evidence that Mother only attended 15 out of
74 visits, that Father only attended 14 out of 74 visits, and that the parents had no contact
with the child outside of those visits. The parents claimed transportation issues were a
barrier to visitation, but as the juvenile court found, if they “truly prioritized reunifying with
S.K. they would have found a way to have contact with [the child] more than 15 times
since October of 2021.”
2. Wishes of the Child
{¶21} The child was too young to express the child’s wishes.
3. Custodial History
Highland App. No. 23CA7 11
{¶22} The child was removed from the parents’ custody when the child was 11
days old. The child was in the temporary custody of the Agency for 12 or more months
of a consecutive 22-month period.
4. Legally Secure Permanent Placement
{¶23} The Ohio Revised Code does not define the phrase “legally secure
permanent placement,” but “this court and others have generally interpreted the phrase
to mean a safe, stable, consistent environment where a child’s needs will be met.” In re
M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. “A legally secure permanent
placement is more than a house with four walls. Rather, it generally encompasses a
stable environment where a child will live in safety with one or more dependable adults
who will provide for the child’s needs.” Id.
{¶24} Evidence supports the juvenile court’s finding that a legally secure
permanent placement could not be achieved without a grant of permanent custody to the
Agency. The Agency presented evidence that the child has been doing well in the
Agency’s temporary custody and that the foster parents, with whom the child has lived for
almost all the child’s life, are interested in adoption. As the juvenile court found, there
were “no viable relative placements for S.K.,” and the child’s parents were “unable or
unwilling to provide a safe, secure and suitable home for [the child] during the pendency
of this action.” Although the parents suggest that they have made progress in this regard,
the parents did not obtain a residence of their own until about a week before the second
day of the permanent custody hearing, and the Agency was not able to determine its
suitability. The juvenile court did not believe the parents had any interest in completing
the case plan. The parents made no meaningful progress in approximately 18 months.
Highland App. No. 23CA7 12
And as the juvenile court pointed out, the fact that they “elected not to appear and defend
the permanent custody motion” on the second day of the hearing, even after the court
offered them transportation, “speaks volumes * * * as to the intent of the parents
concerning reunification with S.K.” The juvenile court found there was no credible
evidence “that the efforts, or lack thereof, by the parents to reunify will be any different if
additional time is granted.” The juvenile court was in the best position to judge credibility,
and we defer to its credibility determinations. In re C.S., 4th Dist. Pike No. 19CA899,
2019-Ohio-5109, ¶ 21.
5. R.C. 2151.414(E)(7) to (E)(11) Factors
{¶25} The juvenile court did not find R.C. 2151.414(E)(7) to (E)(11) applied.
6. Totality of the Circumstances
{¶26} Based on the foregoing, we conclude the juvenile court’s best interest
finding is not against the manifest weight of the evidence. The Agency presented
competent and credible evidence upon which the court reasonably could have formed a
firm belief that a grant of permanent custody to the Agency was in the best interest of the
child. Accordingly, we conclude that the permanent custody award is not against the
manifest weight of the evidence, overrule the sole assignment of error, and affirm the
juvenile court’s judgment.
JUDGMENT AFFIRMED.
Highland App. No. 23CA7 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellants shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Highland
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of
this entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.