In re S.L.

[Cite as In re S.L., 2021-Ohio-2377.]

COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
IN THE MATTER OF: S.L. : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
: Hon. Earle E. Wise, J.
:
:
: Case No. 2021 CA 00027
:
:
: OPINION

CHARACTER OF PROCEEDING: Civil appeal from the Stark County Court of
Common Pleas, Juvenile Division, Case
No. 2019JCV00703

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 9, 2021

APPEARANCES:

For Appellee For Appellant

BRANDON WALTENBAUCH DONOVAN HILL
SCDJFS 122 Market Avenue North
221 3rd Street Suite 101
Canton, OH 44702 Canton, OH 44702
[Cite as In re S.L., 2021-Ohio-2377.]

Gwin, P.J.

{¶1} Appellant M.L. appeals from the February 8, 2021 judgment entry of the

Stark County Court of Common Pleas, Juvenile Division, terminating his parental rights

and granting permanent custody of S.L. to the Stark County Department of Job and

Family Services (“SCDJFS”).

Facts & Procedural History

{¶2} M.L. is the father (“Father”) of S.L., born July 14, 2019. C.W. is the mother

(“Mother”) of the child.

{¶3} On January 23, 2019, SCDJFS filed a complaint of dependency and/or

neglect with regards to S.L. The complaint alleged, in part, the following: both parents

were cognitively delayed and were struggling to care for the newborn child; both parents

were residing in a homeless shelter and lacked supplies for the baby; both parents had

to be reminded to feed the baby; neither parent could verbalize a feeding schedule for the

baby or remember when the child last ate; both parents had mental health diagnoses;

shelter staff reported parents’ room had ants and flies around the sink and they had to

remind both parents to take showers; the child was sunburned and Mother could not

remember how long she was outside with the child and reported that Father would not let

her go inside with the baby; and, despite a safety plan established with the agency for

supervision of the child by paternal relatives, the supervisors reported to SCDJFS that

they could not supervise the parents at all times and could not supervise them long-term.

{¶4} The trial court appointed Dawn Kinsey (“Kinsey”) as guardian ad litem

(“GAL”) for the child on August 8, 2019. The trial court held a hearing on October 10,

2019. The trial court found S.L. to be dependent and placed the child into the temporary
Stark County, Case No. 2021 CA 00027 3

custody of SCDJFS. The magistrate held a further dispositional hearing on January 16,

2020. SCDJFS filed a motion to extend temporary custody on May 26, 2020; the trial

court granted the motion on August 5, 2020.

{¶5} SCDJFS filed a motion for permanent custody on December 8, 2020. The

trial court conducted a trial on the motion on February 3, 2021. Mother stipulated to a

granting of permanent custody of S.L. to SCDJFS.

{¶6} Sue Snyder (“Snyder”), the caseworker for S.L, was assigned to the case

in August of 2019. Snyder confirmed that S.L. was placed into the temporary custody of

SCDJFS on October 10, 2019, and has remained in the temporary custody of SCDJFS

since that time. This is more than twelve of the last twenty-two months. Father’s last visit

with S.L. was on October 5, 2020; thus, Father had no contact with the child for a period

in excess of ninety days. Father showed up at the agency in December requesting an

additional visit with S.L., but only if the visit included Mother. Snyder informed Father he

would have to visit S.L. himself, and Father inquired no further about visiting S.L.

{¶7} As to Father’s case plan, Snyder stated Father was to: complete an

assessment at CommQuest and follow all recommendations; complete an assessment at

Lighthouse and complete all recommendations; and maintain stable housing.

{¶8} Father completed the parenting evaluation at Lighthouse Family Center.

The Lighthouse assessment listed recommendations for ongoing psychiatric care and

some medication compliance. It also provided that if Father and Mother remained in a

relationship, reunification should not occur.

{¶9} Snyder testified that when the case began, Father was living in a shelter.

However, the staff asked him to leave after Father stated he was going to burn the place
Stark County, Case No. 2021 CA 00027 4

down. He then was living in a makeshift shelter outdoors at an abandoned grocery store.

Snyder helped him secure housing at a boarding house. Snyder described the boarding

house as “rough” and not appropriate housing for a child.

{¶10} Snyder confirmed Father did complete an assessment at CommQuest.

However, he was unsuccessfully discharged from the program because he missed

appointments. After Father was arrested, he did return to CommQuest to attend some

AA meetings. CommQuest issued a report in January of 2021 stating Father was

discharged unsuccessfully from the program because he had not continued with

treatment.

{¶11} Snyder does not believe Father can meet the needs of S.L. because of his

severe mental health conditions. Snyder testified Father cannot parent S.L. on a daily

basis, as his own needs can often overwhelm him, even without an infant requiring total

care. Snyder attempted to help Father with case plan compliance by meeting with him,

providing bus passes, and attempting to meet with him away from the boarding house.

{¶12} Snyder also testified at the best interest portion of the trial. Snyder stated

that S.L. is receiving ongoing physical therapy and occupational therapy. Exercises must

be done every day at home and the foster mother does this daily. S.L. has been in the

same foster home since her placement. S.L. is very bonded to the family. Snyder

believes it is in the best interest of S.L. for the court to grant permanent custody to

SCDJFS.

{¶13} Snyder observed Father’s visits with S.L. He tried to be loving with S.L.

There were times when he did not want to accept the prompts such as supporting the
Stark County, Case No. 2021 CA 00027 5

child’s head. Father’s last visit was on October 5, 2020. At this visit, Father was agitated;

Snyder believes this is because he found out he was going to be arrested.

{¶14} Snyder does not believe S.L. is bonded to Father. Snyder testified that the

benefit of permanency outweighs the harm of severing any bond that does exist.

{¶15} Dr. Aimee Thomas (“Thomas”) is a psychologist at Lighthouse Family

Center. Thomas first met Father when he accompanied Mother to her parenting

evaluation. During this interaction, Father was very agitated and upset. With regard to

his own parenting evaluation, Thomas testified Father had difficulties with reading, so that

hindered his ability to complete the standard tests. However, Thomas read the questions

to him. Thomas stated Father presented with moderate intellectual disabilities,

specifically as it relates to problem solving, judgment, abstract learning, and analytical

skills. Father is functioning at the level of a nine-year old with respect to verbal skills, and

a five-year old with respect to non-verbal skills.

{¶16} Thomas testified that Father could not tell time or do basic math. Thus, he

needs a payee. In Thomas’ opinion, Father’s intellectual ability impacts his ability to take

care of himself and a child.

{¶17} Thomas completed a personality test on Father. The results indicated he

was inclined to misread situations, which leads him to be mistrustful and paranoid in his

interactions with others. Father reported to Thomas that he has difficulty interacting with

other, including family members. Father also reported he has mood swings and anger

management problems. Father told Thomas he had previously been diagnosed with bi-

polar disorder and was prescribed medication. Father informed Thomas that he sees and

hears dead people. Thomas concurred with the bi-polar diagnosis, and also diagnosed
Stark County, Case No. 2021 CA 00027 6

Father with psychosis. Thomas stated Father does not have basic parenting knowledge.

For example, when asked how long a child should be placed in time out, he stated ten

hours.

{¶18} Thomas identified Exhibit 1 as the parenting evaluation report she

completed on Father. Though Thomas did not believe Father was likely to be able to

comply with her recommendations due to his severe intellectual disability and mental

health diagnosis, she made several recommendations in her report. These

recommendations were: obtain and maintain comprehensive mental health services,

including psychiatric services; consistently take medication; submit random urine

screens; participate in services for anger management, and participate in Goodwill

Parenting.

{¶19} Based upon the results of her evaluation, Thomas has concerns about

Father’s ability to safely parent a child absent a very strong support system that could

offer constant oversight.

{¶20} Kinsey filed a report recommending permanent custody of the child be

granted to SCDJFS. She noted that S.L. is doing well in the foster home, and foster mom

works with S.L. on all of the child’s therapy needs. Kinsey does not believe S.L. would

be safe with Father.

{¶21} The trial court issued a judgment entry on February 8, 2021, terminating

Father’s parental rights with regards to S.L., and granting permanent custody of the child

to SCDJFS. Simultaneously, the trial court issued extensive findings of fact and

conclusions of law.
Stark County, Case No. 2021 CA 00027 7

{¶22} The trial court issued the following decision as to permanency and

placement: Father abandoned S.L. by failing to maintain contact with or visit with the

child for more than ninety days; S.L. has been in the custody of the agency for a period

of greater than twelve months of a consecutive twenty-two-month period; and S.L. cannot

be placed with either parent within a reasonable time, nor should the child be placed with

them. As to the best interest determination, the trial court set forth the relevant statutory

factors, and found: the harm caused by severing any bond with Father is outweighed by

the benefits of permanence in the child’s life, and it is in the best interest of S.L. to grant

permanent custody to SCDFJS.

{¶23} Father appeals the February 8, 2021 judgment entry of the Stark County

Court of Common Pleas, Juvenile Division, and assigns the following as error:

{¶24} “I. THE JUDGMENT OF THE TRIAL COURT THAT THE MINOR CHILD

CANNOT AND SHOULD NOT BE PLACED WITH APPELLANT AT THIS TIME OR

WITHIN A REASONABLE PERIOD OF TIME WAS AGAINST THE MANIFEST WEIGHT

AND SUFFICIENCY OF THE EVIDENCE.

{¶25} “II. THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTEREST

OF THE MINOR CHILD WOULD BE SERVED BY GRANTING OF PERMANENT

CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE.”

Permanent Custody

{¶26} “[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
Stark County, Case No. 2021 CA 00027 8

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must

be based on clear and convincing evidence. R.C. 2151.414(B)(1).

{¶27} Clear and convincing evidence is that evidence “which will provide 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). “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.” Id. at 477. If some competent, credible evidence going to

all the essential elements of the case supports the trial court’s judgment, an appellate

court must affirm the judgment and not substitute its judgment for that of the trial court.

C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶28} Issues relating to the credibility of witnesses and the weight to be given to

the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is

“crucial in a child custody case, where there may be much evidence in the parties’

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

{¶29} 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 the filing of a motion for permanent custody

of a child by a public children services agency.

{¶30} 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
Stark County, Case No. 2021 CA 00027 9

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, 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 placement agencies for twelve or

more months of a consecutive twenty-two month period ending on or after March 18,

1999.

{¶31} 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, a 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.

I.

{¶32} In his first assignment of error, Father argues the finding that the child

cannot or should not be placed with Father within a reasonable time was not proven by

clear and convincing evidence.

{¶33} We first note that the trial court determined, pursuant to R.C.

2151.414(B)(1)(d), the child has been in the temporary custody of the agency for a period

of time in excess of twelve of the prior twenty-two consecutive months. Snyder testified

the child was placed into the temporary custody of SCDJFS in October of 2019 and was

continuously in the temporary custody of the agency until February 3, 2021, the date of
Stark County, Case No. 2021 CA 00027 10

the trial. Thus, the child has been in the custody of the agency for more than twelve out

of the last twenty-two months.

{¶34} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are

alternative findings, each is independently sufficient to use as a basis to grant the motion

for permanent custody. In re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007-

Ohio-5805. This finding alone, in conjunction with a best interest finding, is sufficient to

support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No. 2008CA00118,

2008-Ohio-5458.

{¶35} Additionally, in this case, the trial court found, by clear and convincing

evidence that Father abandoned the child pursuant to R.C. 2151.414(B)(1)(b). Pursuant

to R.C. 2151.011(C), a child is “presumed abandoned when the parties of the child have

failed to visit or maintain contact with the child for more than ninety days, regardless of

whether the parents resume contact with the child after that period of ninety days.” We

find there is competent and credible evidence to support this determination. Snyder

testified Father’s last visit with S.L. was on October 5, 2020. The trial was held on

February 3, 2021, a time period in excess of ninety days after his last visit.

{¶36} While Father contends SCDJFS refused to set up visits when he asked for

them, the evidence does not support this conclusion. Snyder testified that one time in

December of 2020, Father came to the agency, requesting a visit with S.L., but he wanted

the visit to also be with Mother. When Snyder told Father he would have to visit S.L.

without Mother, he no longer inquired about visiting with S.L. and was focused instead on

his relationship with Mother. Thus, Father was not denied visitation; he chose not to visit
Stark County, Case No. 2021 CA 00027 11

since Mother was not going to be there. Father cites to no other instances where he

requested, and was denied, visitation with S.L.

{¶37} A trial court’s finding of abandonment under R.C. 2151.414(B)(1)(b) will

satisfy the first prong of the permanent custody test, independent of a finding under R.C.

2151.414(B)(1)(a), allowing the court to move on to the second prong of considering

whether the grant of permanent custody to the agency is in the best interest of the child.

In re A.M., 5th Dist. Stark No. 2013 CA 00113, 2013-Ohio-4152.

{¶38} Because Father has not challenged the twelve of twenty-two-month finding,

we would not need to address the merits of this assignment of error. However, even if

we consider Father’s argument, the trial court did not err in determining the child cannot

be placed with Father at this time or within a reasonable period of time. Under R.C.

2151.414(E), the trial court must consider all relevant evidence before making this

determination. The trial court is required to enter such a finding if it determines, by clear

and convincing evidence, that one or more of the factors enumerated in R.C.

2151.414(E)(1) through (16) exist with respect to each of the child’s parents.

{¶39} A review of the record supports the trial court’s conclusion that the child

cannot be placed with Father within a reasonable time. Father was unsuccessfully

discharged from CommQuest and has not engaged in mental health treatment, despite

his significant mental health diagnosis. He was arrested twice during the pendency of

this case, and has been living in a boarding house that is not an appropriate housing

option for a child. Snyder testified Father cannot parent S.L. on a daily basis, as his own

needs often overwhelm him. Thomas testified Father’s cognitive ability negatively affects
Stark County, Case No. 2021 CA 00027 12

his ability to parent a child and care for himself. Thomas stated Father has bipolar

disorder and psychosis.

{¶40} Father’s primary argument is that SCDJFS did not make “reasonable case

planning and diligent efforts” to assist Father in remedying the problems. We disagree.

{¶41} First, the Ohio Supreme Court has held 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. In re C.F., 113

Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816; 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 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.,

113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816; In the Matter of L.J., 5th Dist.

Licking No. 2019 CA 0079, 2019-Ohio-5231. In this case, the trial court previously made

findings of reasonable efforts on July 24, 2019, October 10, 2019, January 16, 2020, and

December 17, 2020.

{¶42} Further, we find there is competent and credible evidence to confirm that

SCDJFS made reasonable efforts to assist Father in eliminating the need for the

continued removal of the child. Snyder testified she provided Father with bus passes,

spoke with him about his case plan objectives, and met with him approximately two dozen

times in person. Snyder made attempts to visit with Father outside, but he did not attend

most of these sessions. When Father’s payee would not help him secure new housing,
Stark County, Case No. 2021 CA 00027 13

Snyder helped Father get his payee changed to the Friendship Center so he could secure

a room at the boarding house. The issue is not whether there was anything more the

agency could have done, but whether the agency’s case planning and efforts were

reasonable and diligent under the circumstance of the case. In the Matter of J.H., 5th

Dist. Guernsey No. 19CA000025, 2019-Ohio-5184; In re J.D., 3rd Dist. Hancock Nos. 5-

10-34, 2011-Ohio-1458.

{¶43} We find there is competent and credible evidence to support the trial court’s

finding that the child cannot be placed with Father within a reasonable amount of time.

Father’s first assignment of error is overruled.

II.

{¶44} In his second assignment of error, Father contends the trial court’s

determination that the best interest of the child would be served by the granting of

permanent custody to SCDJFS was against the manifest weight and sufficiency of the

evidence. Father cites the testimony that he was “active” with S.L. during visits.

{¶45} We have frequently noted, “[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. No. 2000CA00244, 2000 WL 1700073 (Nov. 13, 2000), citing In re

Awkal, 85 Ohio App.3d 309, 316, 642 N.E.2d 424 (8th Dist. 1994).

{¶46} 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
Stark County, Case No. 2021 CA 00027 14

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; (4) the child’s need for a

legally secure placement and whether that type of placement can be achieved without a

grant of permanent custody; and (5) whether any of the factors in divisions (E)(7) to (11)

of this section apply in relation to the parents and child.

{¶47} The court must consider all of the elements in R.C. 2151.414(D) as well as

other relevant factors. There is not one element that is given greater weight than the

others pursuant to the statute. In re Schafer, 11 Ohio St.3d 498, 2006-Ohio-5513, 857

N.E.2d 532. In re Schafer made it clear that a trial court’s statutory duty, when

determining whether it is in the best interest of a child to grant permanent custody to an

agency, does not include finding by clear and convincing evidence that no suitable relative

was available for placement. Id. R.C. 2151.414 “requires the court to find the best option

for the child once a determination has been made pursuant to R.C. 2151.414(B)(1)(a)

through (d). The statute does not make the availability of a placement that would not

require a termination of parental rights an all-controlling factor. The statute does not even

require the court to weigh that factor more heavily than other factors.” Id. at 111.

{¶48} 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.
Stark County, Case No. 2021 CA 00027 15

{¶49} We find the trial court did not err in finding that granting permanent custody

to SCDJFS was in the best interest of S.L.

{¶50} Snyder testified S.L. is receiving ongoing physical and occupational

therapy, with many of the exercises being done at home with her foster family. S.L. has

been in the same foster home since her initial placement, and is very bonded to the foster

family. Snyder believes it is in the best interest of S.L. for the court to grant permanent

custody to SCDJFS. Snyder testified the benefit of permanency outweighs the harm of

severing any minimal bond that exists between S.L. and Father.

{¶51} Similarly, Kinsey stated in her report that permanent custody to SCDJFS is

in the best interest of S.L. She noted S.L. is doing well in the foster home, and foster

mom works with S.L. on all of S.L.’s therapy needs. Kinsey does not believe S.L. would

be safe with Father.

{¶52} We find the trial court properly considered and weighed the factors in R.C.

2151.414(D) and the trial court’s conclusion that the granting of permanent custody to

SCDJFS is in the best interest of the child is supported by competent and credible

evidence. Father’s second assignment of error is overruled.

{¶53} Based on the foregoing, we find the trial court did not abuse its discretion in

granting permanent custody of S.L. to SCDJFS.
Stark County, Case No. 2021 CA 00027 16

{¶54} Father’s assignments of error are overruled and the February 8, 2021

judgment entry of the Stark County Court of Common Pleas, Juvenile Division, is affirmed.

By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur