In re G.O.

[Cite as In re G.O., 2019-Ohio-4547.]

COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
IN THE MATTER OF G.O : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
:
:
: Case No. 2019CA0037
:
:
: OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Licking County Court
of Common Pleas, Juvenile Division, Case
No. F2017-0629

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: October 31, 2019

APPEARANCES:

For Licking County JFS For Jessica Ormsby

WILLIAM C. HAYES MICHAEL DALSANTO
Licking County Prosecutor 33 West Main St., Ste. 109
By: MANDY R. deLEEUW Newark, OH 43055
Assistant Prosecutor
20 S. Second Street, 4th Floor For G.O.
Newark, OH 43055 ROBIN LYN GREEN
P.O. Box 157
ELSHAAD PURYEAR Newark, OH 43058
104 ½ East Main Street
Newark, OH 43055 Guardian Ad Litem
MARY ELLEN LESLIE
28 Keswick Drive
New Albany, OH 43054
[Cite as In re G.O., 2019-Ohio-4547.]

Gwin, P.J.

{¶1} Appellant-mother appeals the May 10, 2019 Judgment Entry of the Licking

County Court of Common Pleas, Juvenile Division, which overruled her objections, denied

her motion for legal custody and terminated her parental rights with respect to her minor

child, G.O. (b. Sept. 24, 2008) and granted permanent custody of the child to appellee,

Licking County Department of Jobs and Family Services (hereinafter “LCJFS”).

Facts and Procedural History

{¶2} Paternal grandfather, J.O. obtained custody of G.O. on September 30, 2009

in Licking County Juvenile Court Case Number G 2009-0487. In making this grant of

custody, the trial court found that Appellant-mother was immature and impulsive, had

abandoned G.O., likely had substance abuse issues, and had mental health issues. The

court ordered that there would be no visitation, contact, or communication permitted

between Appellant-mother and G.O., but added,

The [Appellant-mother] must first contact this Court and provide verification

of her current living conditions, stability of her life, and appropriate home

environment.

In re: G.O., Licking County Court of Common Pleas, Juvenile Division, Case No. G2009-

0487, filed Sept. 30, 2009 at 3 [State’s Exhibit 4B]. That entry contains a handwritten

notation on the last page stating, “No address for mom to send copy of entry.”

{¶3} In August of 2017, paternal grandfather approached Children Services

seeking assistance. He was having significant health issues, and felt he could no longer

serve as the full-time parent for G.O. On September 6, 2017, the State of Ohio filed a

complaint alleging that G.O. was a dependent child. A temporary orders hearing was
Licking County, Case No. 2019CA0037 3

held that day, and the child was placed in the shelter care custody of LCJFS Services.

On November 1, 2017, G.O. was found to be a dependent child, and was placed into the

temporary custody of LCJFS. Appellant-mother did not appear for the adjudication.

Subsequent to the adjudication, paternal grandfather passed away.

{¶4} On July 13, 2018, LCJFS filed a Motion for Permanent Custody. On

October 1, 2018, Appellant-mother filed a motion for Legal Custody or an extension of

time to continue working on her case plan. Both motions came on for an evidentiary

hearing on February 1, 2019 and February 12, 2019.

Permanent Custody / Legal Custody Trial

{¶5} Appellant-mother testified that G.O. was not thriving in her care. Appellant-

mother was told shortly after birth that the child’s craniosynostosis was caused by

mother’s drinking while she was pregnant. 1T. at 73; 81. Appellant-mother gave

guardianship of the child to her father. 1T. at 47.1 Appellant-mother at first indicated that

because the “county” thought she was unfit, she was not able to live with paternal

grandfather and the child. 1T. at 47. She claimed, however, that he let her stay for a

month and then he kicked her out. 1T at 47-48. She was homeless after that time and

did not see the child. Appellant-mother was married from October 2008 until July 2009.

1T. at 105 - 106. She moved to Fort Drum, New York with her husband; however, she

left after only two months, citing to violence by the man against her. She came

back to Ohio and attempted to see G.O. but her father denied her request. She

was aware at that time that a custody hearing had taken place and that her father

For clarity, reference to the hearing that occurred on February 1, 2019 will be by volume and page
1

number as “1T.” and reference to the hearing that occurred on February 12, 2019 will be referred to by
volume and page number as “2T.”
Licking County, Case No. 2019CA0037 4

was given custody of G.O. 1T. at 86. Appellant-mother testified she believed that

her father had discretion concerning her visitation with the child, not the Juvenile

Court. 1T. at 89. She did not attempt to contact the Court to determine her right to

visitation.

{¶6} In December 2009, Appellant-mother moved to California. She testified

that while in California, she got herself clean and sober, participating in A.A. She

went to college and earned an Associate's Degree. Prior to the filing of the complaint for

permanent custody, Appellant-mother had not seen G.O. for five years. 1T. at 97.

{¶7} In California, Appellant-mother lives in a townhouse. She shares that apartment

with her mother P. O., her ex-fiancé, a male friend, and her son. Appellant-mother shares a

bedroom with the male friend, though she stated that they are not in a relationship, nor do they

share a bed. Her ex-fiancé has a room of his own, her mother has her own room, and her son

has a room. Photos of parts of the townhome were submitted as evidence. When asked for

details about who would live where should G.O. come to that home, Appellant-mother testified G.O.

would share a bedroom with her brother, using the bunkbeds in that room. Monthly rent is $1,720.00.

[Mother’s Exhibit 3]. Mother testified that she is responsible for paying one-fourth the rent. 1T. at 62.

{¶8} Appellant-mother testified that she works at a chicken restaurant called Kiki's Chicken.

She testified that she works as a customer service employee. She is paid $12 an hour and works

between 30 and 40 hours a week. She started in September 2018. Prior to that Pizza Hut had

employed her; however she lost that job due to complaints by customers about her interactions with

them. No more details or explanation was provided about this situation with Pizza Hut.

{¶9} Appellant-mother was referred for a mental health assessment. She

testified she has issues including being bi-polar, attention deficit disorder, obsessive-
Licking County, Case No. 2019CA0037 5

compulsive disorder, and depression. An assessment was completed as part of

her case plan. Her testimony was that she was told she needed no further services,

but that she could return for counseling, as she felt was needed. Appellant-mother

testified she had been prescribed medication for her mental health in the past, but stopped

taking medication around 3 years ago. She testified that, while she was pursuing her

college degree, she was taking Wellbutrin for anxiety, but stopped after graduating as

she felt she had things under control. During cross-examination, Appellant-

mother acknowledged having issues with manic depression, and telling the person

doing her mental health assessment that she had just gone through an episode about

a week before the assessment appointment. The assessment recommended a

psychiatric evaluation, as medication would help with the issues. Appellant-mother

testified that she does not like medication because of the way it makes her feel.

She instead uses holistic approaches to address her mental health concerns, such as

applying essential oils, listening to soothing music, and using "stones" to help. She

demonstrated in court by pulling a small stone from her pocket, and showing that she

rubs the stone when she feels stressed or anxious.

{¶10} Maternal grandmother P.O. testified that G.O. was born with complications. 1T. at

111. P.O. was living in California at the time. G.O. testified that Appellant-mother moved to California

in 2010 when she was pregnant with her son. 1T. at 112-113. P.O. testified that she became aware

in August 2013 that the child G.O. was in California. 1T. at 114. P.O. testified that the child was in

California from February 2013 until July 2013. 1T. at 114. P.O. testified that she filed for custody of

G.O. in California. 1T. at 114. P.O. testified that Appellant-mother did not file the motion for custody;

however, she wrote the court a letter stating that she, Appellant-mother, could not care for G.O. 1T. at
Licking County, Case No. 2019CA0037 6

134. G.O. testified that Appellant-mother had given P.O. guardianship of P.O. 1T. at 134. P.O.

testified that because G.O. had left California, the court could not go forward with her motion. P.O.

further testified that she never filed a motion for custody in Ohio claiming,

No, because we were told that - - from [J.O.] that we were - - we had no contact, we

had absolutely no information regarding her. What we understood is [J.O.] had full

custody and [Appellant-mother] didn’t - - didn’t have anything.

1T. at 115. P.O. further testified that in California in 2013, she overheard J.O. ask Appellant-mother

to relinquish her parental rights to G.O. to her sister. 1T. at 148-149. She testified that J.O. told

Appellant-mother “We have the papers. All we need for you to do was sign them.” 1T.at 149.

{¶11} P.O. further testified that in 2018, she told the ongoing caseworker Allison Keeley that

Appellant-mother would never be able to handle raising G.O. on her own. 1T. at 157.

{¶12} Prior to the filing of the motion for permanent custody, P.O. had not seen G.O. since

2013. 1T. at 119. P.O. did not file a motion for legal custody of G.O.

{¶13} Testimony was presented that G.O. is a child with special needs. Caseworker Keeley

testified that when G.O. came into care, it was reported that she was an autistic child. Given this

information, G.O. was scheduled for testing and services through an autism program at Nationwide

Children's Hospital. The testing took place over several months from October 2017 until February

2018, when autism was ruled out as a basis for the child’s observed delays and behaviors. Genetic

testing was recommended to look for a genetic disorder. This was done in March of 2018, and no

genetic disorders were detected. A cognitive testing was recommended next, which took place in

April 2018, and several delays were confirmed. It was recommended that "brain mapping" be done

to determine the best ways in which to work with G.O. to address these delays. This brain mapping

was done in May 2018. The results came back in June 2018. The foster mother was taught some
Licking County, Case No. 2019CA0037 7

parent/child interactive therapy techniques, but in August 2018, more formal counseling was

determined to be necessary. In September 2018, G.O. was put on the wait list for counseling, and in

November 2018, G.O. started counseling. She started out doing bi-weekly sessions. After she

became comfortable with the counselor and the sessions, the frequency of sessions was increased

to weekly sessions.

{¶14} The result of these assessments and testing appear to conclude that G.O. is suffering

from cognitive issues resulting from early childhood trauma, and she is now participating in trauma-

based counseling. She is also engaged in occupational therapy, physical therapy, and speech

therapy to work on her developmental delays in order to help her catch up. She has an I.E.P2 at

school, which addresses these delays, and her educational needs are being addressed through that

plan.

{¶15} G.O. is in foster care. After removal from paternal grandfather, G.O. was placed with

an aunt, but was removed from that placement shortly after due to physical abuse by that aunt. She

is now placed in the home of T. B.

{¶16} T.B. testified during the permanent custody/legal custody trial. This is the first child that

T.B. has fostered. T.B. has a degree in Early Childhood Development, and previously had been an

STNA.3 T.B. testified about G.O. and her experiences with her. She has observed a great deal of

change in G.O. When G.O. came into her home, she described her as a quiet and timid child, who

was frightened by loud noises, even the vacuum cleaner. Having been in her home now since

September 2017, G.O. has become much more outgoing and expressive. Noises do not cause the

fear reaction in G.O. any longer. T.B. testified that as a part of the counseling, she charts G.O.’s

behaviors by noting things on a calendar, with the assistance of the staff at school. This information

2 Individualized Education Program.
3 State tested Nursing Assistant
Licking County, Case No. 2019CA0037 8

is provided to the counselor so that sessions can meet the needs presented. T.B. testified that G.O.

has good days and bad days, and that she does not know what G.O. she is going to get each day

until she wakes her in the morning. She described some days when G.O. acts as a much younger

child, almost like a toddler in terms of her behavior, her communication, and her interactions with

others. On other days, G.O. acts much more like her chronological age. She described life with G.O.

as being busy. There are weekly counseling sessions, occasional meetings at school to address

G.O.'s needs, in addition to the required I.E.P., meetings and conferences.

{¶17} T.B. was asked about the video chats. She verified that only two chats occurred, both

during the bi-weekly "visits" G.O. has with her cousins. On both occasions, T.B. was present in the

area, and listened in so that she would know of any issue or problems. She said each lasted about

ten minutes, and G.O. appeared confused about what was going on. After each video chat, G.O.

expressed concerns about being made to leave T.B.'s home. After the actual visit with Appellant-

mother that took place on January 31, 2019, T.B. described significant behavioral issues. For the

three days following the visit, G.O. played with her feces after using the restroom. She drew on her

bedding and the walls in her room. G.O. threw tantrums for several days after the visit, throwing

herself down on the floor and screaming about not leaving. G.O. talked incessantly about someone

coming to take her away from T.B.’s home. T.B. also described what she believes to be seizures,

which she has observed in G.O. during some behavioral issues.

{¶18} There is no home study of Appellant-mother’s home. There is no approval of that

placement from the State of California. Caseworker Keeley was asked why no home study was

requested from California. Caseworker Keeley stated that no home study was requested because

Appellant-mother did not begin engaging with Children Services until the permanent custody motion

was filed. No motion was filed with the trial court prior to the conclusion of the permanent custody trial
Licking County, Case No. 2019CA0037 9

and the filing of the Magistrates opinion asking that a home study be ordered under the Interstate

Compact for the Placement of Children (Revised Code 5103.20). Magistrate’s Decision, filed Mar.

13, 2019 at 10.

{¶19} The GAL has noted, "G.O., due to her disabilities, lacks the wisdom and

maturity to make her wishes known."

{¶20} After the presentation of evidence, the attorney advocate for G.O. stated her support

for the state's motion for permanent custody. 2T. at 282-285. The GAL recommended that the child

be placed in the legal custody of Appellant-mother, or in the custody of P.O. in California.

{¶21} The trial court concluded LCJFS has made reasonable efforts to prevent the

need for continued removal in this case.

{¶22} The court further found,

For clarity, there is no motion before the court asking that legal

custody of [G.O.] be granted to [P.O.] There was no Statement of

Understanding presented to the undersigned signed by [P.O.] as

required in Revised Code 2151.353(A)(3). As such, [P.O.] is not an

option that can be considered.

Magistrate’s Decision, filed Mar. 13, 2019 at 12. The court further stated that

It does not find that a placement in the California home is in the

best interests of [G.O.]. [Appellant-mother] is living in a four bedroom home

with three other adults and her son. Two of these adults are males, and

are complete strangers to [G.O.]. The two people in this home who know

[G.O.] best are [Appellant-mother] and [P.O.], who have spent a combined

total of less than five hours with [G.O.] in the last two years, and less than
Licking County, Case No. 2019CA0037 10

a day with her since [G.O.] was placed with her grandfather back in 2009.

So, essentially, the plan proposed would be to pack up [G.O.] and send her

across country to a home with four people she barely knows. [Appellant-

mother] has some mental health issues, which she addresses with

essential oils, music, and worry stones (small rocks she rubs with her

hands while stressed). She refuses medication, and goes to counseling

when she needs it, like when she feels overwhelmed. [Appellant-mother]

did take medication when she was in college, as she was concerned about

going to school full-time with the added stresses of work and parenting.

Bottom line is that the home that [Appellant-mother] offers is one filled with

people who [G.O.] doesn't know, in a place she doesn't know. Additionally,

[G.O.] has some special needs which are being addressed through trauma

counseling, but which is also manifesting itself through behavioral issues.

There was a great deal of discussion as to why these issues weren't

brought to light sooner and why [G.O.] wasn't involved in counseling for

quite some time after the case began, As was explained, [G.O.] was

involved in a great deal of diagnostic services which appear to have taken

many months to complete. These services were necessary to determine

what [G.O.’s] needs are, so that the treatment could be tailored to her

needs. With this all said, the undersigned heard nothing about what

[Appellant-mother] has available in California to work with [G.O.] and her

needs. She and [the G.A.L.] kept harping on the delay in sharing [G.O.]

diagnosis with [Appellant-mother], but no one offered the undersigned any
Licking County, Case No. 2019CA0037 11

idea of what services are available in California. Given that the Motion for

Legal Custody is asking for immediate placement, the undersigned cannot

simply take a "wait and see" approach to this. That is not in [G.O.’s] best

interests. Simply put, the undersigned finds that the evidence presented

did not establish that a placement in California, with either [Appellant-

mother] or [P.O.], is in [G.O.’s] best interests.

Magistrate’s Decision, filed Mar. 13, 2019 at 13-14.

{¶23} By Judgment Entry filed May 10, 2019, the trial court held,

The Court has undertaken an independent examination of the

magistrate's decision and has reviewed the entire transcript of the

proceeding including all exhibits admitted into evidence at hearing. This

Court can find no errors of law or other defects prejudicial to the rights of

the parents or the child. This Court finds that the record contains

substantial, credible evidence which supports the magistrate's findings as

set forth in his decision.

{¶24} On March 13, 2019, the same date that the Magistrate’s opinion was

filed 4, Appellant-mother filed a motion to commence an Interstate Compact on the

Placement of Children pursuant to R.C. 5103.23 5. Appellant-mother asked the

court order LCJFS commence and cooperate with the receiving state, California

for potential placement of G.O. with Appellant-mother.

{¶25} By Judgment Entry filed April 4, 2019 the trial court denied the motion

on the ground that the motion was not timely filed, having been filed after

4 The Magistrate’s Decision bears a time-stamp of 12:39 p.m.
5 The motion bears a time-stamp of 1:11 p.m.
Licking County, Case No. 2019CA0037 12

permanent custody had been granted and that compact is not required if the

Agency does not plan to place the child out-of-state.

{¶26} Appellant-mother filed her notice of appeal with this Court on May 24,

2019.

Assignments of Error

{¶27} Mother raises two assignments of error.

{¶28} “I. THE TRIAL COURT ERRED IN FINDING THAT THE BEST INTERESTS OF

THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY.

{¶29} “II. THE AGENCY FAILED TO MAKE REASONABLE EFFORTS IN REUNIFYING

THE CHILD BECAUSE IT REFUSED TO CONDUCT AN INTERSTATE COMPACT STUDY OF

THE APPELLANT'S HOME IN CALIFORNIA.”

BURDEN OF PROOF.

{¶30} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169(1990), quoting Stanley v. Illinois, 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551(1972). A parent's interest in the care, custody

and management of his or her child is “fundamental.” Id.; Santosky v. Kramer, 455 U.S.

745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599(1982). The permanent termination of a parent's

rights has been described as, “* * * the family law equivalent to the death penalty in a

criminal case.” In re Smith, 77 Ohio App.3d 1, 16, 601 N.E.2d 45(6th Dist. 1991).

Therefore, parents “must be afforded every procedural and substantive protection the law

allows.” Id.

{¶31} An award of permanent custody must be based upon clear and convincing

evidence. R.C. 2151.414(B)(1). The Ohio Supreme Court has defined “clear and
Licking County, Case No. 2019CA0037 13

convincing evidence” as “[t]he measure or degree of proof that will produce in the mind

of the trier of fact a firm belief or conviction as to the allegations sought to be established.

It is intermediate, being more than a mere preponderance, but not to the extent of such

certainty as required beyond a reasonable doubt as in criminal cases. It does not mean

clear and unequivocal.” In re Estate of Haynes, 25 Ohio St.3d 101, 103-104, 495 N.E.2d

23 (1986).

STANDARD OF APPELLATE REVIEW.

{¶32} The Ohio Supreme Court has delineated our standard of review as follows,

Where the degree of proof required to sustain an issue must be clear

and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the

requisite degree of proof. See Ford v. Osborne, 45 Ohio St. 1, 12 N.E. 526,

Cole v. McClure, 88 Ohio St. 1, 102 N.E. 264, and Frate v. Rimenik, 115

Ohio St. 11, 152 N.E. 14.

Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E. 2d 118 (1954). A court of appeals will

affirm the trial court's findings “if the record contains competent, credible evidence by

which the court could have formed a firm belief or conviction that the essential statutory

elements for a termination of parental rights have been established.” In re Adkins, 5th

Dist. Nos. 2005AP06–0044 and 2005AP07–0049, 2006-Ohio-431, 2006 WL 242557, ¶17.

{¶33} In Cross, the Supreme Court further cautioned,

The mere number of witnesses, who may support a claim of one or

the other of the parties to an action, is not to be taken as a basis for resolving

disputed facts. The degree of proof required is determined by the
Licking County, Case No. 2019CA0037 14

impression which the testimony of the witnesses makes upon the trier of

facts, and the character of the testimony itself. Credibility, intelligence,

freedom from bias or prejudice, opportunity to be informed, the disposition

to tell the truth or otherwise, and the probability or improbability of the

statements made, are all tests of testimonial value. Where the evidence is

in conflict, the trier of facts may determine what should be accepted as the

truth and what should be rejected as false. See Rice v. City of Cleveland,

114 Ohio St. 299, 58 N.E.2d 768.

161 Ohio St. at 477-478. (Emphasis added).

Requirements for Permanent Custody Awards

{¶34} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon filing of a motion for permanent custody of a

child by a public children services agency or private child placing agency that has

temporary custody of the child or has placed the child in long-term foster care.

{¶35} Following the hearing, R.C. 2151.414(B) authorizes the juvenile court to

grant permanent custody of the child to the public or private agency if the court

determines, by clear and convincing evidence, it is in the best interest of the child to grant

permanent custody to the agency, and that any of the following apply:

(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, or has not been in the temporary custody of one
Licking County, Case No. 2019CA0037 15

or more public children services agencies or private child placing agencies

for twelve or more months of a consecutive twenty-two-month period if, as

described in division (D)(1) of section 2151.413 of the Revised Code, the

child was previously in the temporary custody of an equivalent agency in

another state, 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; or

(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, or 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 and, as described in division (D)(1) of

section 2151.413 of the Revised Code, the child was previously in the

temporary custody of an equivalent agency in another state.

{¶36} Therefore, R.C. 2151.414(B) establishes a two-pronged analysis the trial

court must apply when ruling on a motion for permanent custody. In practice, the trial

court will usually determine whether one of the four circumstances delineated in R.C.

2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding

the best interest of the child.
Licking County, Case No. 2019CA0037 16

1. Parental Placement within a Reasonable Time–R.C. 2151.414(B)(1)(a).

{¶37} In her second assignment of error, Appellant-mother contends that LCJFS

failed to make reasonable efforts in reunification because the agency refused to conduct

an Interstate Compact study of Appellant-mother’s home in California pursuant to R.C.

5103.20.

{¶38} The court must consider all relevant evidence before determining the child

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

the parents. R.C. 2151 .414(E). The statute also indicates that if the court makes a

finding under R.C. 2151.414(E)(1)-(15), the court shall determine the children cannot or

should not be placed with the parent. A trial court may base its decision that a child

cannot be placed with a parent within a reasonable time or should not be placed with a

parent upon the existence of any one of the R.C. 2151.414(E) factors. The existence of

one factor alone will support a finding that the child cannot be placed with the parent

within a reasonable time. See In re William S., 75 Ohio St.3d 95, 1996–Ohio–182, 661

N.E .2d 738; In re Hurlow, 4th Dist. Gallia No. 98 CA 6, 1997 WL 701328 (Sept. 21, 1998);

In re Butcher, 4th Dist. Athens No. 1470, 1991 WL 62145(Apr. 10, 1991).

{¶39} R.C. 2151.414(E) sets forth factors a trial court is to consider in determining

whether a child cannot be placed with either parent within a reasonable period of time or

should not be placed with the parents. Specifically, Section (E) provides, in pertinent part,

as follows:

(E) In determining at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code whether a child cannot be placed with either parent within a
Licking County, Case No. 2019CA0037 17

reasonable period of time or should not be placed with the parents, the court

shall consider all relevant evidence. If the court determines, by clear and

convincing evidence, at a hearing held pursuant to division (A) of this

section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code that one or more of the following exist as to each of the child’s

parents, 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:

(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 changing parental conduct to allow them to resume and maintain

parental duties.

***

(16) Any other factor the court considers relevant.

{¶40} R.C. 2151.414(D) requires the trial court to consider all relevant factors in

determining whether the child’s best interests would be served by granting the permanent
Licking County, Case No. 2019CA0037 18

custody motion. These factors include but are not limited to: (1) the interrelationship of

the child with others; (2) the wishes of the child; (3) the custodial history of the child; (4)

the child’s need for a legally secure placement and whether such a placement can be

achieved without permanent custody; and (5) whether any of the factors in divisions (E)(7)

to (11) apply.

{¶41} In this case, the trial court made its permanent custody findings pursuant to

R.C. 2151.414(E)(1), (4) and/or (16).

{¶42} As set forth above, the trial court’s findings are based upon competent

credible evidence. The trial court was in the best position to determine the credibility of

the witnesses.

The Interstate Compact on the Placement of Children (“ICPC”)

{¶43} The ICPC is a contract among member states and U.S. territories

authorizing them to work together to ensure that children who are placed across state

lines for foster care or adoption receive adequate protection and support services. See

R.C. 5103.20, Article I, Section (A)-(C). This is accomplished by ensuring that if a child

is moved across state lines, that child’s rights be protected as if they were in their home

state and all legal requirements are observed. The compact characterizes states as

either “sending” or “receiving.” The sending agency/state is a member state that sends,

brings, or causes to be sent or brought any child to another member state. Id. at Article

II, Section (T). The receiving state is the state to which the child is sent, brought, or

caused to be sent or brought for placement with state or local public authorities, or for

placement with private agencies or persons. Id. at Article II, Section (P). The ICPC states

that jurisdiction is vested in the sending state “over a child with respect to all matters of
Licking County, Case No. 2019CA0037 19

custody and disposition of the child which it would have had if the child had remained in

the sending state. Such jurisdiction shall also include the power to order the return of the

child to the sending state.” Id. at Article IV, Section (A). In re: G.M., 8th Dist. Cuyahoga

No. 95410, 2011-Ohio-4090, ¶6.

{¶44} The trial court noted that Appellant-mother did not file a motion with the trial

court requesting that the court order an ICPC until after the permanent custody trial and

after the Magistrate’s decision had been filed. By Judgment Entry filed April 4, 2019

the trial court denied the motion on the ground that the motion was not timely filed,

having been filed after permanent custody had been granted and that compact is

not required if the Agency does not plan to place the child out-of-state.

{¶45} Any failure of LCJFS to request an ICPC study is harmless beyond a

reasonable doubt because the results of the case would not have changed.

{¶46} The record establishes by clear and convincing evidence, that Paternal

Grandfather, J.O., was given legal custody of G.O. due to Appellant-mother’s alcohol and

drug abuse. The Judgment Entry giving Paternal Grandfather custody clearly prohibits

Appellant-mother from visitation or contact with G.O. until Appellant-mother provided

verification of her current living conditions, stability of her life, and appropriate home

environment. At no time during her visits to Ohio did Appellant-mother ever attempt to

contact the Licking County Juvenile Court to determine how she could obtain visitation

and/or custody of G.O. Instead, Appellant-mother chooses to rely upon her fear of her

father to excuse her lack of effort. No testimony was presented that Paternal Grandfather

had ever abused Appellant-mother. The only reason given by Appellant-mother for her

fear is that Paternal Grandfather could somehow take her son away from her. The
Licking County, Case No. 2019CA0037 20

evidence establishes that Appellant-mother knew that she retained some parental rights

to G.O. She even wrote a letter to the California court in support of her mother P.O.

obtaining custody of G.O. The record clearly establishes that Appellant-mother could

have, but did not seek custody or visitation of G.O in the Licking County Court of Common

Pleas, Juvenile Division at any time before the permanent custody motion was filed.

{¶47} In 2013, Appellant-mother admitted to the California court that she was

unable to care for G.O. P.O. further testified that in 2018, she told the ongoing caseworker Allison

Keeley that Appellant-mother would never be able to handle raising G.O. on her own. 1T. at 157.

{¶48} The case of In re: Secrest, 2nd Dist. Montgomery No. 19377, 2002-Ohio-

7096 cited by Appellant-mother is distinguishable. In the case at bar, there was no

evidence presented that California would accept a transfer of the case. In re: R.M., 2nd

Dist. Montgomery No. 27318, 2017-Ohio-4325, ¶49. Further, there was no evidence

presented that G.O. is bonded to Appellant-mother. In re: R.M., 2017-Ohio-4325, ¶50.

The evidence established that Paternal Grandfather was given custody on September 30,

2009. Appellant-mother moved to California in 2010. Appellant-mother did not seek

transfer at the time she moved to California, as did the mother in Secrest. In re: R.M.,

2017-Ohio-4325, ¶51.

{¶49} During the time that she lost custody and the time she returned to California,

Appellant-mother had no face-to-face or telephone contact with G.O. Appellant-mother

did not contact the court or an attorney in Ohio to determine her rights.

{¶50} Between 2010 when she moved to California and 2013, Appellant-mother

saw G.O. one time in 2013 when G.O. was in California. From that visit in 2013 until the

permanent custody trial, Appellant-mother had at most two in-person visits and two video
Licking County, Case No. 2019CA0037 21

visits. Appellant-mother did not even attend the second day of the permanent custody

trial on February 12, 2019. 2T. at 202-203. Appellant-mother returned to California due

to her employment at the chicken restaurant.

{¶51} In this case, referrals were made for Appellant-mother by LCJFS for

substance abuse assessments, mental health assessments, housing and employment

services, parenting education, and visitation. Arrangements were made for video chats

between Appellant-mother and G.O. The record establishes that only two such chats

occurred. Appellant-mother testified that she told no one at LCJFS about problems with

facilitating or scheduling the video chats.

{¶52} “Reasonable efforts” have been described as the state's efforts to resolve a

threat to a child's health or safety before removing the child from the home or permitting

the child to return home, which follow an intervention to protect a child from abuse or

neglect. See In re C.F., 113 Ohio St. 3d 73, 862 N.E. 2d 816, 2007– Ohio– 1104, at ¶

28, citing Will L. Crossley, Defining Reasonable Efforts: Demystifying the State's Burden

Under Federal Child Protection Legislation (2003), 12 B.U. Pub.Int.L.J. 259, 260. These

efforts are required because of the fundamental nature of the right to parent one's

children. In re C.F., 2007– Ohio– 1104, at ¶ 21, 113 Ohio St. 3d 73, 862 N.E. 2d 816.

{¶53} The Ohio Supreme Court has held that the trial court is not obligated by

R.C. 2151.419 to make a determination that the agency used reasonable efforts to reunify

the family at the time of the permanent custody hearing unless the agency has not

established that reasonable efforts have been made prior to that hearing. See In re C.F.,

2007–Ohio– 104, at ¶ 41; ¶ 43; See, also, R.C. 2151.419. The trial court is only obligated

to make a determination that the agency has made reasonable efforts to reunify the family
Licking County, Case No. 2019CA0037 22

at “adjudicatory, emergency, detention, and temporary-disposition hearings, and

dispositional hearings for abused, neglected, or dependent children, all of which occur

prior to a decision transferring permanent custody to the state.” In re C.F., 2007– Ohio–

1104, at ¶ 41.

{¶54} A parent’s successful completion of the terms of a case plan is not

dispositive on the issue of reunification. The ultimate question under R.C. 2151.414(A)(1)

is whether the parent has substantially remedied the conditions that caused the child’s

removal. In re Shchigelski (Oct. 20, 2000), 11th Dist. No. 99–G–2241, 2000 Ohio App.

LEXIS 4900, 2000 WL 1568388; In re McKenzie (Oct. 18, 1995), 9th Dist. No. 95CA0015,

1995 Ohio App. LEXIS 4618, 1995 WL 608285. A parent can successfully complete the

terms of a case plan yet not substantially remedy the conditions that caused the children

to be removed—the case plan is simply a means to a goal, but not the goal itself. Hence,

the courts have held that the successful completion of case plan requirements does not

preclude a grant of permanent custody to a social services agency. In re J.L., 8th Dist.

No. 84368, 2004–Ohio–6024, at ¶ 20; In re Mraz, 12th Dist. Nos. CA2002–05–011,

CA2002–07–014, 2002–Ohio–7278.

In re C.C., 187 Ohio App.3d 365, 2010–Ohio–780, 932 N.E.2d 360, ¶ 25 (8th Dist.).

{¶55} In the case at bar, evidence was presented that G.O. has unique needs. Each

day waking up, T.B. testified that she did not know which version of G.O. she will get, meaning that

G.O.'s behaviors, and the demands on a parent to address those behaviors, will vary every day. T.B.

described life with G.O. as being busy, between counseling sessions, meetings at school,

conferences and doctor appointments. As she described it, G.O. is a child who needs a

parent who is on her “A” game every day.
Licking County, Case No. 2019CA0037 23

{¶56} Appellant-mother presented no evidence that she is capable of meeting G.O.’s

special needs. Other than making arrangements for G.O. to have a bedroom with either her

brother or her grandmother, Appellant-mother did not present the trial court with any plan

concerning how she would cope with G.O. on a day-to-day basis. The evidence is clear that

Appellant-mother has a problem with stress but does not seek or follow the advice of

professionals to deal with the issue. No evidence was presented as to how Appellant-mother

would arrange for G.O. to receive I.E.P. plans, counseling and doctor appointments.

{¶57} In short, clear and convincing evidence supports the trial court’s finding that

LCJFS made reasonable efforts at reunification. Although LCJFS could have made a

referral for an ICPC, the record establishes by clear and convincing evidence that

Appellant-mother could not manage the complex and special needs of G.O.

The Best Interest of the Child.

{¶58} In her First Assignment of Error, Appellant-mother argues that the trial court

erred in finding it to be in the best interest of G.O. to grant the motion for permanent

custody.

{¶59} In determining the best interest of the child at a permanent custody hearing,

R.C. 2151.414(D) mandates the trial court must consider all relevant factors, including,

but not limited to, the following: (1) the interaction and interrelationship of the child with

the child's parents, siblings, relatives, foster parents and out-of-home providers, and any

other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; and (4) the child's need
Licking County, Case No. 2019CA0037 24

for a legally secure permanent placement and whether that type of placement can be

achieved without a grant of permanent custody.

{¶60} The focus of the “best interest” determination is upon the child, not the

parent, as R.C. 2151.414(C) specifically prohibits the court from considering the effect a

grant of permanent custody would have upon the parents. In re: Awkal, 95 Ohio App.3d

309, 315, 642 N.E.2d 424(8th Dist.1994). A finding that it is in the best interest of a child

to terminate the parental rights of one parent is not dependent upon the court making a

similar finding with respect to the other parent. The trial court would necessarily make a

separate determination concerning the best interest of the child with respect to the rights

of the mother and the rights of the father.

{¶61} The trial court made findings of fact regarding G.O.’s best interest. It is well-

established that “[t]he discretion which the juvenile court enjoys in determining whether

an order of permanent custody is in the best interest of a child should be accorded the

utmost respect, given the nature of the proceeding and the impact the court's

determination will have on the lives of the parties concerned.” In re: Mauzy Children, 5th

Dist. Stark No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), quoting In re Awkal,

95 Ohio App.3d 309, 316, 642 N.E.2d 424(8th Dist. 1994).

{¶62} As an appellate court, we neither weigh the evidence nor judge the

credibility of witnesses. Our role is to determine whether there is relevant, competent and

credible evidence, upon which the fact finder could base its judgment. Cross Truck v.

Jeffries, 5th Dist. Stark No. CA-5758, 1981 WL 6321(Feb. 10, 1982). “Reviewing courts

should accord deference to the trial court’s decision because the trial court has had the

opportunity to observe the witnesses’ demeanor, gestures, and voice inflections that
Licking County, Case No. 2019CA0037 25

cannot be conveyed to us through the written record, Miller v. Miller, 37 Ohio St. 3d 71,

523 N.E.2d 846(1988).

{¶63} In the present case, the trial court's decision indicates it considered the best

interest factors. Upon review of the record, it is clear that the record supports the trial

court's finding that granting the motion for permanent custody is in G.O.s' best interest.

The trial court concluded the child's need for legally secure placement could not be

achieved without awarding permanent custody to LCJFS.

{¶64} G.O. has now been in her foster home since September 7, 2017.

Appellant-mother had little contact with G.O. since losing custody to the Paternal-

Grandfather in 2009. G.O. displayed disruptive and destructive behavior at the thought

of being sent to California. She not only regressed in her behaviors but also had seizures.

G.O. appears happy and making progress in her current environment. G.O.’s basic and

special needs are being meet in her present home. It appears that the foster parent is

loving and supportive of G.O. G.O. will need care supervision, and support for many

years to come.

Conclusion

{¶65} For these reasons, we find that the trial court’s determination that Appellant-

Mother had failed to remedy the issues that caused the initial removal and therefore the

child could not be placed with her within a reasonable time or should not be placed with

her was based upon competent credible evidence and is not against the manifest weight

or sufficiency of the evidence. We further find that under the facts of this case, any failure

to conduct an ICPC study of Appellant-mother’s home in California was harmless beyond

a reasonable doubt.
Licking County, Case No. 2019CA0037 26

{¶66} We further find that the trial court’s decision that permanent custody to

LCJFS was in the child's best interest was based upon competent, credible evidence and

is not against the manifest weight or sufficiency of the evidence.

{¶67} Because the evidence in the record supports the trial court’s judgment, we

overrule Appellant-Mother’s two assignments of error, and affirm the decision of the

Licking County Court of Common Pleas, Juvenile Division.

By Gwin, P.J.,

Hoffman, J., and

Wise Earle, J., concur