[Cite as In re M.R.J., 2019-Ohio-1616.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: M.R.J., K.W., AND S.W. : APPEAL NO. C-190012
TRIAL NO. F-16-936-X
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Opinion on Appeal: May 1, 2019
Phyllis Schiff, for Appellant Mother,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Jonathan Halvonik,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job
and Family Services,
Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant
Public Defender, Guardian ad Litem for M.R.J., K.W. and S.W.,
James Costin, In re Williams Attorney for M.R.J., K.W. and S.W.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Mother appeals the Hamilton County Juvenile Court’s judgment
granting permanent custody of her three children to the Hamilton County
Department of Job and Family Services (“HCJFS”). In her sole assignment of error,
mother argues that the juvenile court’s decision was not supported by the record.
Specifically, mother challenges the juvenile court’s determination that she failed to
remedy the conditions that had brought the children into HCJFS’s custody. For the
reasons set forth below, we affirm.
I. Standard of Review
{¶2} A trial court's determination to award permanent custody must be
supported by clear and convincing evidence. In re W.W., 1st Dist. Hamilton No. C-
110363, 2011-Ohio-4912, ¶ 46. Clear and convincing evidence is evidence sufficient
to “produce in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus. In the context of a motion for permanent custody
under R.C. 2151.413, a juvenile court’s decision will not be reversed on appeal where
the court “correctly applied the best-interests test and where its custody decision was
amply supported by competent, credible evidence in the record.” In re Allah, 1st
Dist. Hamilton No. C-040239, 2005-Ohio-1182, ¶ 11.
II. Motion for Permanent Custody
{¶3} R.C. 2151.414 governs the findings the juvenile court must make before
granting permanent custody of a child to a children services agency. Under R.C.
2151.414(B), the juvenile court may grant a motion for permanent custody if the
court determines, by clear and convincing evidence, that permanent custody is in the
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best interest of the child and that one of the five conditions set forth in R.C.
2151.414(B)(1) applies. The R.C. 2151.414(B)(1) conditions include:
(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services
agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period, * * * and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child’s parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.
(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for
twelve or more months of a consecutive twenty-two-month period
* * *.
(e) The child or another child in the custody of the parent or parents
from whose custody the child has been removed has been
adjudicated an abused, neglected, or dependent child on three
separate occasions by any court in this state or another state.
1. R.C. 2151.414(B)(1) Conditions
{¶4} Under R.C. 2151.414(B)(1), a child is considered to have entered
temporary custody of an agency “on the earlier of the date the child is adjudicated
pursuant to [R.C. 2151.28] or the date that is sixty days after the removal of the child
from home.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} While neither the juvenile court nor the magistrate cited R.C.
2151.414(B)(1)(d), they both found that the children had been in HCJFS custody for
12 or more months of a consecutive 22-month period.
{¶6} The children were removed from mother’s home and placed in the
interim custody of HCJFS on April 13, 2016. Pursuant to R.C. 2151.414(B)(1), the
children are considered to have entered temporary custody 60 days thereafter, on
June 13, 2016. HCJFS moved for permanent custody on March 19, 2018, over 21
months after the children entered temporary custody. This finding is undisputed.
Therefore, the record clearly and convincingly supports a finding under R.C.
2151.414(B)(1)(d).
{¶7} Because the juvenile court found that one of the five conditions in R.C.
2151.414 (B)(1) applies, the court was only required to determine whether an award
of permanent custody is in the best interest of the children before ruling on the
motion. Nevertheless, the juvenile court went on to find that clear and convincing
evidence established that the children cannot be placed with either parent within a
reasonable period of time and should not be placed with either parent. The court
was not required to make these findings.
{¶8} In this appeal, mother’s only issue presented for review and argument
concerns one of the factors the juvenile court relied on to make findings that it was
not required to make.
{¶9} Only division (B)(1)(a) of R.C. 2151.414 requires the court to consider
whether the children cannot be placed with either parent within a reasonable period
of time or should not be placed with their parents. In order to make that
determination, the court must find that at least one of the factors listed in R.C.
2151.414(E) exists. In this case, mother challenges only the juvenile court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
determination under R.C. 2151.414(E)(1) that she failed to substantially remedy the
conditions that brought the children into HCJFS’s custody.
{¶10} However, the juvenile court was not required to consider any of the
division (E) factors because division (B)(1)(a) does not apply in this case. The
undisputed evidence shows that the children had been in HCJFS’s custody for 12 or
more months of a consecutive 22-month period. Therefore, division (B)(1)(a) cannot
possibly apply because it requires that the children had not been in temporary
custody for 12 or more months of a consecutive 22-month period.
{¶11} Because the juvenile court’s finding that one of the five conditions set
forth in R.C. 2151.414(B)(1) was amply supported by the record, we must next
determine whether the court correctly applied the best-interest test.
2. Best Interest
{¶12} The juvenile court also determined that it is in the children’s best
interest to be placed in the permanent custody of HCJFS. In determining the best
interest of the child, the juvenile court must consider all relevant factors, including,
but not limited to, those expressly set forth in R.C. 2151.414(D)(1).
{¶13} The magistrate considered the interrelationship of the children with
their foster parents, the custodial history of the children, the need for a legally secure
placement, and mother’s abandonment of the children. See R.C. 2151.414(D)(1)(a),
(c), (d) and (e). The record supports all of these findings by clear and convincing
evidence.
{¶14} The children entered the interim custody of HCJFS after mother was
incarcerated for possession of heroin and child endangering. S.W. was subsequently
placed in therapy, where she reported she was a victim of sexual abuse and physical
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abuse from mother’s then-boyfriend. She also reported witnessing domestic violence
in the home. S.W. was subsequently diagnosed with post-traumatic stress disorder.
{¶15} Therapy changed S.W.’s behavior and she is now bonded to her foster
parents. K.W. and M.R.J., who are placed together in foster care, are likewise
comfortable in their foster home. Both sets of foster parents desire to adopt the
children, and the children wish to remain in their foster homes. Although K.W. and
M.R.J. do not want mother’s parental rights to be terminated, none of the children
want to return home to her.
{¶16} Upon her release from incarceration, mother participated in a
diagnostic assessment that recommended family therapy “should her daughter’s
ongoing providers recommend it.” Family therapy was recommended. The record is
clear that mother was unable to begin family therapy because she was not
participating in supervised visitation. From January 2018 to March 2018, mother
attended only six of 12 available visits. After March 2018, mother failed to attend
three visits, and Family Nurturing Center removed supervised visitation. In August
2018, HCJFS again referred mother to supervised visitation, but mother did not
attend. As of the date of the full hearing, mother had not seen her children for seven
months.
{¶17} Evidence as to mother’s interactions with her children during the visits
is inconsistent. Visitation facilitator Christopher Deering testified that mother spent
quality time with her children when she attended visits. For example, mother
appropriately redirected the children, engaged in conversations with them, and
brought them food and gifts. However, Deering also indicated considerable
animosity between K.W. and mother. For example, a February 2018 visit was
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terminated early because mother was “berating” K.W. in front of the other children.
Deering related that mother’s actions bordered on verbal abuse.
{¶18} Based on the foregoing, the record contains ample competent and
credible evidence to support the juvenile court’s grant of permanent custody to
HCJFS. Therefore, we overrule mother’s sole assignment of error and affirm the
juvenile court’s judgment.
Judgment affirmed.
M YERS , P.J., and W INKLER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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