In re J.M.

[Cite as In re J.M., 2021-Ohio-4146.]

IN THE COURT OF APPEALS
FORTH APPELLATE DISTRICT
HIGHLAND COUNTY

: CASE NO. 21CA13
IN THE MATTER OF: 21CA14
: 21CA15
J.M., S.M., D.M., 21CA16
AND B.M., :

Adjudicated Dependent : DECISION & JUDGMENT ENTRY
Children.
:
________________________________________________________________
APPEARANCES:

K. Danielle Whitt, Hillsboro, Ohio, for Appellant.1

Anneka P. Collins, Highland County Prosecuting Attorney, and
James Roeder, Assistant Highland County Prosecuting Attorney,
Hillsboro, Ohio, for Appellee.
________________________________________________________________

CIVIL CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED:11-16-21
ABELE, J.

{¶1} This is an appeal from a Highland County Common Pleas

Court, Juvenile Division, judgment that granted Highland County

Job and Family Services Agency, Children Services Division,

appellee herein, permanent custody of four minor children: (1)

thirteen-year-old J.M.; (2) eleven-year-old S.M.; (3) eight-

year-old D.M.; and (4) six-year-old B.M.

1 Different counsel represented appellant during the trial court
proceedings.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 2

{¶2} Bianca M., the children’s biological mother and

appellant herein, raises the following assignments of error for

review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT’S AWARD OF PERMANENT
CUSTODY TO THE AGENCY IS WAS [SIC] AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE AND THUS
CONSTITUTES REVERSABLE [SIC] ERROR.”

SECOND ASSIGNMENT OF ERROR:

“THE AGENCY DID NOT USE REASONABLE EFFORTS
TO PREVENT REMOVAL OR TO REUNITE THE
CHILDREN TO MOTHER-APPELLANT.”

{¶3} In August 2019, J.M. disclosed to school friends that

her father had sexually abused her. An agency caseworker

visited the school to speak with J.M. and she stated that her

“father was doing inappropriate things to her and that

[appellant] was aware of the allegations.” J.M. informed the

caseworker that J.M. “drew pictures of her and her father and

that [appellant] hid them.”

{¶4} When a caseworker spoke with appellant, she admitted

to “knowing in her gut that something happened.” Appellant did

not, however, ask the father to leave the home or report her

suspicions to anyone. Appellant advised the caseworker that

appellant “didn’t think she could raise the kids on her own and

chose to ignore the allegations.”
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 3

{¶5} On August 22, 2019, appellee sought, and received, an

emergency temporary custody order. On that same date, appellee

filed a complaint that alleged the children are abused,

neglected, and dependent and requested temporary custody of the

children.

{¶6} On October 18, 2019, appellant and the father admitted

to the allegations contained in the complaint and waived their

right to an adjudicatory hearing. The trial court adjudicated

the children dependent, dismissed the abuse and neglect

allegations, and based upon the parties’ agreement, the court

placed the children in appellee’s temporary custody for one

year. The court also found that appellee used reasonable

efforts to prevent the children’s removal from the home.

{¶7} On February 4, 2021, appellee filed a motion for

permanent custody. Appellee asserted that the children have

been in its temporary custody for at least 12 of the past 22

months and that placing the children in its permanent custody is

in the children’s best interests.

{¶8} On April 9, 2021, appellee filed a motion that asked

the trial court to suspend appellant’s visits with the children.

Appellee alleged that the three youngest children’s foster

parents “experienc[ed] an increase with emotional/behavioral

issues with the children in the past month.” The motion stated
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 4

that “SM & BM are struggling the most and fear for their safety

since their mother now is aware of their disclosure of sex

abuse.” Appellee claimed that D.M. “has had an increase in

bowel accidents, lying, [and] out of control thoughts.”

Appellee further indicated that J.M. currently is “in respite

due to her ongoing behavioral issues.” Appellee also asserted

that the children’s guardian ad litem recommended that visits be

suspended.

{¶9} To support its motion, appellee attached a letter from

the three younger children’s therapist that stated that visits

with appellant are not “health[y] or productive” for the

children. The therapist’s letter also outlined, in more detail,

the children’s worsening behavioral issues, along with the

children’s concerns raised regarding their visits with

appellant. Subsequently, the court granted the motion to

suspend visits.

{¶10} On June 4, 2021, the trial court held a hearing to

consider appellee’s permanent custody motion. At the hearing,

the parties presented evidence. Family Advocacy Center

visitation monitor Delores Colville testified that appellant

attended most of her scheduled visits with the children,

interacted appropriately with the children and noted that the

children seemed bonded to appellant.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 5

{¶11} Caseworker Rebecca Souther, the family’s caseworker

since February 2020, stated that the children’s father is in

prison with an expected release date in 2039. Souther related

that the agency developed a case plan for the family with a goal

of reunifying the children with appellant. This plan required

appellant to complete a psychological evaluation, to continue

mental health counseling, to obtain suitable housing, and to

maintain employment. Souther explained that appellant continued

to receive mental health counseling and had remained employed

throughout the pendency of the case. Appellant, however, had

recently moved to Mansfield “to get a fresh start.”

{¶12} Souther further related that the case plan recommended

that all four children receive psychological evaluations and

engage in counseling, and the children remain in counseling.

Souther reported that, after the children had been removed from

appellant’s home, the children had been placed with relatives.

Approximately four weeks later, however, J.M. entered a

residential facility and remained until September 2020 when the

agency placed J.M. in a therapeutic foster home. In January

2021, J.M. was removed from the home and placed in respite.

Between January 2021 and April 2021, J.M. was placed in two

foster homes. In April 2021, the agency placed J.M. in L.N.’s

home, and J.M. has remained in L.N.’s home since that time.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 6

{¶13} Souther also explained that the three younger children

remained in their relative placements until February 2020, when

the agency placed S.M. and B.M. with a foster family. The

children have since remained in the home.

{¶14} After D.M.’s removal from the relative’s home,

appellee placed him in a therapeutic foster home. In July 2020,

appellee placed D.M. with the same foster family as S.M. and

B.M. Shortly thereafter, D.M. was removed and placed with

another foster family. D.M. has remained with this foster

family since that time.

{¶15} Souther testified that the agency eventually

determined that reunifying the children with appellant is not

possible:

Throughout the life of this case, the children
have struggled with their behaviors, trained foster
parents have struggled to manage those behaviors. And
at the beginning of the case, [appellant] did state
that she hadn’t think [sic] that she was able to
manage them. She has not said that to me since then,
but I have a concern for her ability to be able to
manage these behaviors with these four children.

{¶16} C.C., a foster parent, stated that S.M. and B.M. have

lived in her home since February 2020. C.C. explained that,

when S.M. first entered her home, S.M. was domineering and “had

a lot of issue with behavior and attitude and not wanting to

listen or comply with rules.” C.C. reported that, at one point,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 7

S.M. had taken a cell phone from school and “tried to send very

explicit photos to a young boy at school of her private areas.”

Additionally, S.M. had several failing grades and displayed

aggressive behaviors.

{¶17} C.C. testified that B.M. “was very aggressive” when

the child first entered her home. She explained that B.M.

“would kick, scream, pull [the foster mother’s] hair, yell at

[the foster mother], * * * and throw herself to the ground.”

C.C. further indicated that B.M. had behavioral issues at school

and had “to transfer her classroom multiple times until B.M. was

placed with a teacher she felt “comfortable with.”

{¶18} C.C. stated that neither child slept through the

night, and B.M. “had terrible, terrible nightmares.” C.C. also

testified that both children displayed sexualized behavior and

see a trauma-based therapist. Since the children stopped

visiting appellant, however, their behaviors have improved.

Once visits stopped, S.M. improved her grades and finished the

school year with As and Bs. C.C. further explained that, since

visits stopped, B.M. has not had nightmares. C.C. stated that

she “would love to be able to adopt” B.M. and S.M.

{¶19} C.C. further related that D.M. lived in her home for

17 days and spent four of those days in the hospital. She

explained that D.M. broke a bed and tried to tip over a dresser.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 8

Additionally, D.M. “tried to sexually touch [B.M.] multiple

times.” At another point, D.M. ran away and she had to call law

enforcement to help to locate him.

{¶20} D.M.’s current foster parent, Cl.C. testified that

D.M. moved into her home in July 2020 following a hospital stay.

Cl.C. stated that when D.M. arrived, he was “bubbly” and

“started exploring” the house. Cl.C. related that the next day,

D.M. started to call her and her husband “mom and dad.” For the

first six weeks, D.M. did not display aggressive behavior, but

after six weeks she noticed “a lot of aggression.” He hit,

kicked, bit, pinched, and threw things. He also tried to run

away. Cl.C. stated that she eventually placed a camera in

D.M.’s room because he tried to break out the window and run

away.

{¶21} L.N., J.M.’s foster parent, testified that J.M. has

been in her home since April 17, 2021. L.N. stated that J.M.’s

behavior with L.N.’s husband is “borderline inappropriate,”

because J.M. tries “to tickle him often,” “tries to cuddle with

him on the couch,” and acts “a little bit flirtatious.”

{¶22} Appellant testified upon cross-examination and

indicated that she lives in Mansfield and works at Morrow Manor.

She explained she moved to Mansfield because she “wanted a fresh
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 9

start.” Appellant did acknowledge that the children made some

allegations against her, but she denied they are true.

{¶23} Appellant stated that she attends counseling every two

weeks to help treat PTSD, anxiety, and depression, and that she

takes four prescribed medicines to treat her conditions.

Appellant acknowledged that she admitted the children are

dependent, and that she stated that she did not believe that she

could raise the four children on her own, but she denied that

she admitted that she chose to ignore the sexual abuse

allegations.

{¶24} Appellant presented several witnesses to testify on

her behalf. Amanda Meeker, appellant’s best friend, stated that

the children did not have behavioral issues before appellee

removed them from appellant’s custody. Meeker further indicated

that she did not have any concerns about appellant’s parenting

skills.

{¶25} Deborah Britt, the children’s great-aunt, testified

that, when the agency first removed the children from

appellant’s custody, the agency placed J.M. and S.M. in her home

and placed D.M. and B.M. in Britt’s daughter’s home. Britt

explained that the agency later determined that the children

needed counseling and, due to her work schedule it would have

been difficult to ensure that the children could attend all of
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 10

their counseling sessions. Thus, the agency placed the children

in foster homes. Britt stated that, before the agency removed

the children from appellant’s care, the children were “well

behaved” and “polite.” Britt also has no concerns about

appellant’s parenting abilities.

{¶26} Appellant also presented testimony from her father and

sister, who likewise stated that they have no concerns about

appellant’s parenting abilities.

{¶27} On June 7, 2021, the trial court awarded appellee

permanent custody of the four children. The court first

determined that the children have been in appellee’s custody for

12 or more months of a consecutive 22-month period. The court

next considered the children’s best interests and noted that

although appellant attended most of the visits with the children

and the visits “went well,” the court expressed concern with

appellant’s admission that she believed “in her gut something

had happened,” yet did nothing. The court thus found that

appellant “violated her most basic and fundamental role as a

parent by failing to protect her children and most specifically

J.M. from being raped by [the father].” The court also noted

that appellant remained married to the father.

{¶28} The trial court also found the foster parents’

testimony “both compelling and heartbreaking.” The court
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 11

determined that “all four children observed a way of life with

their parents that was destructive and likely caused permanent

damage to each of them,” that the children have “numerous

behavioral issues,” and that they “are doing as well in their

respective placements as can be expected.”

{¶29} The trial court concluded that the parents’ “actions

as well as inactions” show that the children cannot achieve a

legally secure permanent placement without granting appellee

permanent custody. The court additionally observed that the

children’s guardian ad litem recommended that the court place

the children in appellee’s permanent custody.

{¶30} Consequently, the trial court determined that the

children’s placement in appellee’s permanent custody is in their

best interests and granted appellee permanent custody of the

four children. This appeal followed.

I

{¶31} In her first assignment of error, appellant asserts

that the trial court’s decision to grant appellee permanent

custody is against the manifest weight of the evidence.

{¶32} In particular, appellant contends that the evidence

shows that appellee should have attempted to reunify the family.

Appellant claims that she (1) complied with her case plan and

continued to engage in recommended counseling, (2) consistently
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 12

visited the children, (3) remained employed throughout the

pendency of the case, and (4) obtained a suitable residence.

Appellant further claims that the concerns that led appellee to

the children’s removal (father’s sexual abuse and the condition

of the home) have been eliminated. Appellant thus contends

that, because appellee did not present any evidence to show that

she “would be harmful to the children or that the children would

come to harm if returned to the care, custody and control of”

appellant, the court should have denied appellee’s permanent

custody motion and continued work to reunify appellant with the

children.

A

{¶33} Generally, a reviewing court will not disturb a trial

court’s permanent custody decision unless the decision is

against the manifest weight of the evidence. E.g., In re B.E.,

4th Dist. Highland No. 13CA26, 2014-Ohio-3178, ¶ 27; In re R.S.,

4th Dist. Highland No. 13CA22, 2013-Ohio-5569, ¶ 29.

“Weight of the evidence concerns ‘the inclination
of the greater amount of credible evidence, offered in
a trial, to support one side of the issue rather than
the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to
their verdict, if, on weighing the evidence in their
minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established
before them. Weight is not a question of mathematics,
but depends on its effect in inducing belief.’”
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 13

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78 Ohio St.3d 380,

387, 678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1594

(6th Ed.1990).

{¶34} When an appellate court reviews whether a trial

court’s permanent custody decision is against the manifest

weight of the evidence, the court “‘“weighs the evidence and all

reasonable inferences, considers the credibility of witnesses

and determines whether in resolving conflicts in the evidence,

the [finder of fact] clearly lost its way and created such a

manifest miscarriage of justice that the [judgment] must be

reversed and a new trial ordered.”’” Eastley at ¶ 20, quoting

Tewarson v. Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th

Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d

541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983); accord In re Pittman, 9th Dist.

Summit No. 20894, 2002-Ohio-2208, ¶¶ 23-24. We further observe,

however, that issues relating to the credibility of witnesses

and the weight to be given the evidence are primarily for the

trier of fact. As the court explained in Seasons Coal Co. v.

Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984):

The underlying rationale of giving deference to
the findings of the trial court rests with the
knowledge that the trial judge is best able to view
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 14

the witnesses and observe their demeanor, gestures and
voice inflections, and use these observations in
weighing the credibility of the proffered testimony.

Moreover, deferring to the trial court on matters of credibility

is “crucial in a child custody case, where there may be much

evident in the parties’ demeanor and attitude that does not

translate to the record well (Emphasis sic).” Davis v.

Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

Accord In re Christian, 4th Dist. No. 04CA 10, 2004-Ohio-3146, ¶

7.

{¶35} The question that an appellate court must resolve when

reviewing a permanent custody decision under the manifest weight

of the evidence standard is “whether the juvenile 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. “Clear and convincing evidence” is:

the 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, 103-04, 495 N.E.2d 23

(1986). In determining whether a trial court based its decision

upon clear and convincing evidence, “a reviewing court will
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 15

examine the record to determine whether the trier of facts had

sufficient evidence before it to satisfy the requisite degree of

proof.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54

(1990); accord In re Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d

613 (1985), citing Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954) (“Once the clear and convincing standard has

been met to the satisfaction of the [trial] court, the reviewing

court must examine the record and determine if the trier of fact

had sufficient evidence before it to satisfy this burden of

proof.”); In re Adoption of Lay, 25 Ohio St.3d 41, 42-43, 495

N.E.2d 9 (1986). Cf. In re Adoption of Masa, 23 Ohio St.3d 163,

165, 492 N.E.2d 140 (1986) (whether a fact has been “proven by

clear and convincing evidence in a particular case is a

determination for the [trial] court and will not be disturbed on

appeal unless such determination is against the manifest weight

of the evidence”).

{¶36} Thus, if a children services agency presented

competent and credible evidence upon which the trier of fact

reasonably could have formed a firm belief that permanent

custody is warranted, 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, ¶ 62 (4th Dist.); In re R.L., 2nd Dist. Greene

Nos. 2012CA32 and Greene Nos. 2012CA33, 2012-Ohio-6049, ¶ 17,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 16

quoting In re A.U., 2nd Dist. Montgomery No. 22287, 2008-Ohio-

187, ¶ 9 (“A reviewing court will not overturn a court’s grant

of permanent custody to the state as being contrary to the

manifest weight of the evidence ‘if the record contains

competent, credible evidence by which the court could have

formed a firm belief or conviction that the essential statutory

elements * * * have been established.’”).

{¶37} Once a reviewing court finishes its examination, the

judgment may be reversed only if it appears that the fact-

finder, when resolving the conflicts in evidence, “‘clearly lost

its way and created such a manifest miscarriage of justice that

the [judgment] must be reversed and a new trial ordered.’”

Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983). A reviewing court should find a trial court’s

permanent custody decision against the manifest weight of the

evidence only in the “‘exceptional case in which the evidence

weighs heavily against the [decision].’” Id., quoting Martin, 20

Ohio App.3d at 175, 485 N.E.2d 717; accord State v. Lindsey, 87

Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).

B

{¶38} We recognize that “parents’ interest in the care,

custody, and control of their children ‘is perhaps the oldest of
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 17

the fundamental liberty interests recognized by th[e United

States Supreme] Court.’” In re B.C., 141 Ohio St.3d 55, 2014-

Ohio-4558, 21 N.E.3d 308, ¶ 19, quoting Troxel v. Granville, 530

U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Indeed, the

right to raise one’s “child is an ‘essential’ and ‘basic’ civil

right.” In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169

(1990); accord In re Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680

(1997); see Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.

1388, 71 L.Ed.2d 599 (1982) (“natural parents have a fundamental

right to the care and custody of their children”). Thus,

“parents who are ‘suitable’ have a ‘paramount’ right to the

custody of their children.” B.C. at ¶ 19, quoting In re

Perales, 52 Ohio St.2d 89, 97, 369 N.E.2d 1047 (1977), citing

Clark v. Bayer, 32 Ohio St. 299, 310 (1877); Murray, 52 Ohio

St.3d at 157, 556 N.E.2d 1169.

{¶39} A parent’s rights, however, are not absolute. In re

D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 11.

Rather, “‘it is plain that the natural rights of a parent * * *

are always subject to the ultimate welfare of the child, which

is the polestar or controlling principle to be observed.’” In

re Cunningham, 59 Ohio St.2d 100, 106, 391 N.E.2d 1034 (1979),

quoting In re R.J.C., 300 So.2d 54, 58 (Fla. App. 1974). Thus,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 18

the State may terminate parental rights when a child’s best

interest demands such termination. D.A. at ¶ 11.

{¶40} Before a court may award a children services agency

permanent custody of a child, R.C. 2151.414(A)(1) requires the

court to hold a hearing. The primary purpose of the hearing is

to allow the court to determine whether the child’s best

interests would be served by permanently terminating the

parental relationship and by awarding permanent custody to the

agency. Id. Additionally, when considering whether to grant a

children services agency permanent custody, a trial court should

consider the underlying purposes of R.C. Chapter 2151: “to care

for and protect children, ‘whenever possible, in a family

environment, separating the child from the child’s parents only

when necessary for the child’s welfare or in the interests of

public safety.’” In re C.F., 113 Ohio St.3d 73, 2007-Ohio-1104,

¶ 29, 862 N.E.2d 816, quoting R.C. 2151.01(A).

C

{¶41} A children services agency may obtain permanent

custody of a child by (1) requesting it in the abuse, neglect or

dependency complaint under R.C. 2151.353, or (2) filing a motion

under R.C. 2151.413 after obtaining temporary custody. In this

case, appellee sought permanent custody by filing a motion under
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 19

R.C. 2151.413. When an agency files a permanent custody motion

under R.C. 2151.413, R.C. 2151.414 applies. R.C. 2151.414(A).

{¶42} R.C. 2151.414(B)(1) permits a trial court to grant

permanent custody of a child to a children services agency if

the court determines, by clear and convincing evidence, that the

child’s best interest would be served by the award of permanent

custody and that one of the following conditions applies:

(a) The child is not abandoned or orphaned or 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 ending on or after
March 18, 1999, 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 ending
on or after March 18, 1999.
(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.

{¶43} Thus, before a trial court may award a children

services agency permanent custody, it must find (1) that one of

the circumstances described in R.C. 2151.414(B)(1) applies, and
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 20

(2) that awarding the children services agency permanent custody

would further the child’s best interest.

{¶44} In the case at bar, appellant does not dispute the

trial court’s finding that the children have been in the

agency’s temporary custody for 12 or more months of a

consecutive 22-month period. Therefore, we do not address the

court’s R.C. 2151.414(B)(1)(d) finding. Appellant does,

however, contest the trial court’s finding that placing the

children in appellee’s permanent custody is in their best

interests.

{¶45} R.C. 2151.414(D) directs a trial court to consider

“all relevant factors,” as well as specific factors, to

determine whether a child's best interest will be served by

granting a children services agency permanent custody. The

listed factors include: (1) the child’s interaction and

interrelationship 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 child’s wishes,

as expressed directly by the child or through the child’s

guardian ad litem, with due regard for the child’s maturity; (3)

the child’s custodial history; (4) 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
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 21

to the agency; and (5) whether any factors listed under R.C.

2151.414(E)(7) to (11) apply.

{¶46} Courts that are determining whether a grant of

permanent custody to a children services agency will promote a

child’s best interest must consider “all relevant [best

interest] factors,” as well as the “five enumerated statutory

factors.” C.F. at ¶ 57, citing In re Schaefer, 111 Ohio St.3d

498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56; accord In re C.G.,

9th Dist. Summit Nos. 24097 and Summit Nos. 24099, 2008-Ohio-

3773, ¶ 28; In re N.W., 10th Dist. Franklin Nos. 07AP-590 and

Franklin Nos. 07AP-591, 2008-Ohio-297, ¶ 19. However, none of

the best interest factors are entitled to “greater weight or

heightened significance.” C.F. at ¶ 57. Instead, the trial

court considers the totality of the circumstances when making

its best interest determination. In re K.M.S., 3rd Dist. Marion

Nos. 9-15-37, 9-15-38, and Marion Nos. 9-15-39, 2017-Ohio-142, ¶

24; In re A.C., 9th Dist. Summit No. 27328, 2014-Ohio-4918, ¶

46. In general, “[a] child’s best interest is served by placing

the child in a permanent situation that fosters growth,

stability, and security.” In re C.B.C., 4th Dist. Lawrence Nos.

15CA18 and Lawrence Nos. 15CA19, 2016-Ohio-916, ¶ 66, citing In

re Adoption of Ridenour, 61 Ohio St.3d 319, 324, 574 N.E.2d 1055

(1991).
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 22

{¶47} In the case sub judice, after our review of the trial

court proceeding, we do not believe that the trial court’s best-

interest determination is against the manifest weight of the

evidence.

{¶48} We first note that, although appellant’s first

assignment of error recites the best-interest factors, she does

not explain how any of those factors show that granting

permanent custody of the children is not in their best

interests. Instead, the best interest argument contained

beneath appellant’s first assignment of error focuses solely

upon her conduct, her case plan compliance, and her current

situation. However, the argument contained beneath appellant’s

second assignment of error does contain a short argument

regarding the best-interest factors. Appellant asserts that she

and the children share “a clear bond” and that appellant

consistently visited the children. Although appellant did not

raise her best-interest argument within the corresponding

assignment of error, we nonetheless will consider whether the

trial court’s best interest determination is against the

manifest weight of the evidence.

Children’s Interactions and Interrelationships

{¶49} The evidence adduced at the hearing reveals that the

four children enjoy visiting with one another, generally enjoyed
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 23

visiting appellant, and appeared to be bonded with appellant.

We hasten to add, however, that the mere existence of a bond is

not the sole deciding factor when a court evaluates a child’s

best interest. See In re L.D., 2017-Ohio-1037, 86 N.E.3d 1012,

¶ 38 (8th Dist.) (mother’s bond with children not weighed more

heavily than other statutory best interest factors).

{¶50} Furthermore, in April 2021, the trial court terminated

appellant’s visits with the children due to concerns that the

visits were no longer healthy for the children and seemed to

cause the children’s behavioral issues to worsen. Thus, the

evidence indicates that the children do not share a positive,

healthy relationship with appellant. Instead, the evidence

illustrates that appellant’s conduct, and her failure to protect

her children, has caused the children to suffer serious

emotional trauma.

{¶51} Additionally, foster families are providing the

children with a healthy environment, along with the support that

the children need. S.M. and B.M.’s foster parents would like to

adopt the two children. Appellee, however, did not present any

clear evidence regarding D.M.’s and J.M.’s foster parents’

intentions. The evidence does show that all the foster parents

are making admirable and commendable efforts to help these
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 24

fragile children improve their behaviors and overall mental

health.

Children’s Wishes

{¶52} The court stated that the children’s wishes are

“outlined within the Guardian Ad Litem report” and noted that

the guardian ad litem recommended the court grant appellee

permanent custody of the children.

Custodial History

{¶53} Before their August 2019 removal from the home, the

children lived with appellant and their father. Since their

removal, the children have remained in appellee’s temporary

custody. When appellee filed its February 2021 permanent

custody motion, the children had been in appellee’s temporary

custody for more than 12 months.

Legally Secure Permanent Placement

{¶54} “Although the Ohio Revised Code does not define the

term, ‘legally secure permanent placement,’ 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, citing In re Dyal, 4th Dist. Hocking No. 01CA12, 2001 WL

925423, *9 (Aug. 9, 2001) (“legally secure permanent placement”

means a “stable, safe, and nurturing environment”); see also In
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 25

re K.M., 10th Dist. Franklin Nos. 15AP-64 and 15AP-66, 2015-

Ohio-4682, ¶ 28 (legally secure permanent placement requires

more than stable home and income, but also requires environment

that will provide for child’s needs); In re J.H., 11th Dist.

Lake No. 2012-L-126, 2013-Ohio-1293, ¶ 95 (mother unable to

provide legally secure permanent placement when she lacked

physical and emotional stability and father unable to do so when

he lacked grasp of parenting concepts); In re J.W., 171 Ohio

App.3d 248, 2007-Ohio-2007, 870 N.E.2d 245, ¶ 34 (10th Dist.)

(Sadler, J., dissenting) (legally secure permanent placement

means “a placement that is stable and consistent”); Black’s Law

Dictionary 1354 (6th Ed. 1990) (defining “secure” to mean, in

part, “not exposed to danger; safe; so strong, stable or firm as

to insure safety”); id. at 1139 (defining “permanent” to mean,

in part, “[c]ontinuing or enduring in the same state, status,

place, or the like without fundamental or marked change, not

subject to fluctuation, or alteration, fixed or intended to be

fixed; lasting; abiding; stable; not temporary or transient”).

Thus, “[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.”

M.B. at ¶ 56.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 26

{¶55} In the case sub judice, after our review we believe

that the evidence adduced at the hearing supports the trial

court’s finding that the children need a legally secure

permanent placement, and they cannot achieve this type of

placement without granting appellee permanent custody. As the

court found, appellant ignored the sexual abuse allegations.

This court previously recognized that “a parent’s doubts

regarding a child’s abuse allegations raise serious questions

about that parent’s protective capacities and commitment to

providing for the child’s emotional needs.” In re A.M., 2018-

Ohio-646, 105 N.E.3d 389, ¶ 82 (4th Dist.) (citations omitted);

see also In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825, 895

N.E.2d 809, ¶ 47 (mother’s decision to remain living with

pedophile-husband supported R.C. 2151.414(E)(14) finding that

she is unwilling to prevent children from suffering physical,

emotional, or sexual abuse); In re A.J., 6th Dist. Lucas No. L-

13-1118, 2014-Ohio-421, ¶ 55 (mother’s “continued skepticism

about what occurred under her own roof displays a conscious

disregard to protect her children and for their well-being”); In

re J.H., 12th Dist. Preble No. CA2007-07-016, 2007-Ohio-7079, ¶¶

30–31 (evidence did not show father prioritized children’s

safety and unwilling to protect children from future abuse when

intended to stay married to wife, the abuser, and when failed to
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 27

acknowledge his wife abused the children); In re Moore, 7th

Dist. Belmont No. 04-BE-9, 2005-Ohio-136, ¶ 40 (upholding

permanent custody decision based, in part, upon testimony from

sexual abuse investigator that “if a parent does not believe

abuse allegation by a child, they would not be capable of

protecting that child from future abuse”); Matter of Ranker,

11th Dist. Portage Nos. 95–P–0093–0096, 1996 WL 761159, *10

(Dec. 6, 1996) (court may grant permanent custody when mother

unable to protect children from a foreseeable abusive

situation).

{¶56} In the case at bar, appellant did not notify anyone

about her suspicions that the father had sexually abused J.M.

Appellant did admit that she knew “in her gut that something

happened,” yet did nothing. Instead, appellant remained silent

because she did not believe that she could raise the children on

her own. Appellant thus failed in one of her essential duties

as a parent – to protect her children from abuse. Consequently,

appellant’s failure to report her suspicions raises serious

doubts about her protective capacity and her ability to provide

the children with a safe environment.

{¶57} Moreover, all of the children have serious behavioral

issues that require counseling. The stability and routines that

the foster homes have given the children allow the children to
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 28

begin to recover. Additionally, once visits with appellant

terminated, the foster families noticed significant improvement

in the children’s behaviors. Thus, the trial court could have

reasonably determined that placing the children in appellee’s

permanent custody would give the children the best chance of

overcoming the emotional trauma that they suffered, and that

returning them to appellant – the caregiver who failed to

protect them – would cause them to regress. We cannot fault the

trial court for choosing not to experiment with the children’s

welfare, especially considering their delicate states. As this

court often notes:

“* * * [A] child should not have to endure the
inevitable to its great detriment and harm in order to
give the * * * [parent] an opportunity to prove her
suitability. To anticipate the future, however, is at
most, a difficult basis for a judicial determination.
The child’s present condition and environment is the
subject for decision not the expected or anticipated
behavior of unsuitability or unfitness of the * * *
[parent]. * * * The law does not require the court to
experiment with the child’s welfare to see if he will
suffer great detriment or harm.”

In re W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841, ¶ 48,

quoting In re Bishop, 36 Ohio App.3d 123, 126, 521 N.E.2d 838

(5th Dist.1987).

{¶58} Moreover, even if appellant complied with every part

of the case plan, as we have observed in the past, a parent’s

case plan compliance may be a relevant, but not necessarily
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 29

conclusive, factor when a court considers a permanent custody

motion. In re B.P., 4th Dist. Athens No. 20CA13, 2021-Ohio-

3148, ¶ 57; In re T.J., 4th Dist. Highland No. 2016-Ohio-163, ¶

36, citing In re R.L., 9th Dist. Summit Nos. 27214 and 27233,

2014-Ohio-3117, ¶ 34 (“although case plan compliance may be

relevant to a trial court’s best interest determination, it is

not dispositive of it”); In re S.C., 8th Dist. Cuyahoga No.

102349, 2015-Ohio-2280, ¶ 40 (“Compliance with a case plan is

not, in and of itself, dispositive of the issue of

reunification”); accord In re K.M., 4th Dist. Ross No. 19CA3677,

2019-Ohio-4252, ¶ 70, citing In re W.C.J., 4th Dist. Jackson No.

14CA3, 2014-Ohio-5841, ¶ 46 (“[s]ubstantial compliance with a

case plan is not necessarily dispositive on the issue of

reunification and does not preclude a grant of permanent custody

to a children’s services agency”); In re N.L., 9th Dist. Summit

No. 27784, 2015-Ohio-4165, ¶ 35 (“substantial compliance with a

case plan, in and of itself, does not establish that a grant of

permanent custody to an agency is erroneous”). “Indeed, because

the trial court’s primary focus in a permanent custody

proceeding is the child’s best interest, ‘it is entirely

possible that a parent could complete all of his/her case plan

goals and the trial court still appropriately terminate his/her

parental rights.’” W.C.J. at ¶ 46, quoting In re Gomer, 3d
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 30

Dist. Wyandot Nos. 16-03-19, 16-03-20, and 16-03-21, 2004-Ohio-

1723, ¶ 36; accord In re K.J., 4th Dist. Athens No. 08CA14,

2008-Ohio-5227, ¶ 24 (“when considering a R.C. 2151.414(D)(1)(d)

permanent custody motion, the focus is upon the child’s best

interests, not upon the parent’s compliance with the case

plan”). Thus, a parent’s case plan compliance will not preclude

a trial court from awarding permanent custody to a children

services agency when doing so is in the child’s best interest.

Id.

{¶59} In the case sub judice, as we noted above, we believe

that the record contains ample clear and convincing evidence

that placing the children in appellee’s permanent custody is in

their best interests. Although we do not discount appellant’s

compliance with the case plan, her case plan compliance does not

override the children’s best interests.

{¶60} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

{¶61} In her second assignment of error, appellant asserts

that the trial court erred by granting appellee permanent

custody of the children due to appellee’s alleged lack of

reasonable efforts to reunify the family. Appellant contends

that appellee should have instead filed for a six-month
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 31

temporary custody extension, rather than a permanent custody

request.

{¶62} We note, however, that the argument that appears

beneath appellant’s second assignment of error does not assert

that appellee failed to use reasonable efforts. Instead, within

her second assignment of error appellant contends that the trial

court’s best-interest determination is against the manifest

weight of the evidence. Because appellant does not raise any

specific argument regarding appellee’s alleged failure to use

reasonable efforts, we will not construct this argument for her.

See generally State v. Dailey, 4th Dist. Adams No. 18CA1059,

2018-Ohio-4315, ¶ 43-44, quoting State v. Palmer, 9th Dist.

Summit No. 28303, 2017-Ohio-2639, ¶ 33 (appellate court does not

have a duty to construct argument on an appellant’s behalf and

stating that this court will not address “‘undeveloped

arguments’”). We further note that R.C. 2151.419(A)(1) does

require a trial court to determine whether a children services

agency “made reasonable efforts to prevent the removal of the

child from the child’s home, to eliminate the continued removal

of the child from the child’s home, or to make it possible for

the child to return safely home.” However, this statute applies

only at “adjudicatory, emergency, detention, and temporary-

disposition hearings, and dispositional hearings for abused,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 32

neglected, or dependent children * * *.” C.F., supra, at ¶ 41;

accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and 15CA19,

2016-Ohio-916, ¶ 72. Thus, “‘[b]y its plain terms, the statute

does not apply to motions for permanent custody brought pursuant

to R.C. 2151.413, or to hearings held on such motions pursuant

to R.C. 2151.414.’” C.F. at ¶ 41, quoting In re A.C., 12th

Dist. Clermont No. CA2004-05-041, 2004-Ohio-5531, ¶ 30.

Nonetheless, “[t]his does not mean that the agency is relieved

of the duty to make reasonable efforts” before seeking permanent

custody. Id. at ¶ 42. Instead, at prior “stages of the child-

custody proceeding, the agency may be required under other

statutes to prove that it has made reasonable efforts toward

family reunification.” Id. Additionally, “[if] the agency has

not established that reasonable efforts have been made prior to

the hearing on a motion for permanent custody, then it must

demonstrate such efforts at that time.” Id. at ¶ 43.

{¶63} In the case sub judice, appellant’s appeal does not

originate from one of the types of hearings specifically listed

in R.C. 2151.419(A): “adjudicatory, emergency, detention, and

temporary-disposition hearings, and dispositional hearings for

abused, neglected, or dependent children.” Appellee, therefore,

did not have the burden to prove at the permanent custody

hearing that it used reasonable efforts to reunify the family,
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16 33

unless it had not previously done so. Here, our review of the

record reflects that the trial court made reasonable efforts

findings before the agency filed its permanent custody motion.

Thus, the court did not need to again find that the agency used

reasonable efforts before it could grant the agency permanent

custody of the children. E.g., In re M.H.–L.T., 4th Dist.

Washington No. 17CA12, 2017-Ohio-7825, ¶ 64; In re S.S., 4th

Dist. Jackson Nos. 16CA7 and 16CA8, 2017-Ohio-2938, ¶ 168.

{¶64} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED.
HIGHLAND, 21CA13, 21CA14, 21CA15, AND 21CA16

34

JUDGMENT ENTRY

It is ordered that the judgment be affirmed. Appellee

shall recover of appellant the costs herein taxed.

The Court finds there were reasonable grounds for this

appeal.

It is ordered that a special mandate issue out of this

Court directing the Highland County Common Pleas Court, Juvenile

Division, to carry this judgment into execution.

A certified copy of this entry shall constitute that

mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Hess, J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________
Peter B. Abele, 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.