In re D.V.

[Cite as In re D.V., 2022-Ohio-1024.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

IN RE: D.V. AND J.A. : APPEAL NOS. C-210580
C-210624
: TRIAL NO. F-17-002227Z

:

: O P I N I O N.

Appeals From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and case Remanded in C-210624; Affirmed in
C-210580

Date of Judgment Entry on Appeal: March 30, 2022

Christopher P. Kapsal, for Appellant Mother,

Roger W. Kirk, for Appellant Father,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Patsy Bradbury,
Assistant Prosecuting Attorney, for Appellee Hamilton County Department of Job and
Family Services,

Kimberly Thomas, Guardian Ad Litem for D.V. and J.A.
 OHIO FIRST DISTRICT COURT OF APPEALS

BOCK, Judge.

{¶1} In these consolidated appeals, appellants mother and father challenge

the juvenile court’s judgment granting permanent custody of D.V. and J.A. to the

Hamilton County Department of Job and Family Services (“HCJFS”). For the

following reasons, we reverse the juvenile court’s judgment with respect to mother in

the appeal numbered C-210624 and remand that case to the juvenile court for

proceedings consistent with this opinion. We affirm the juvenile court’s termination

of father’s parental rights in the appeal numbered C-210580.

I. Facts and Procedure

{¶2} Mother is the biological mother of J.A.1 In September 2017, mother gave

birth to father’s son, D.V. Days before D.V.’s birth, father was arrested and charged

with aggravated menacing in violation of R.C. 2903.21, and assault in violation of R.C.

2903.13. The charges were later dismissed. In October 2017, HCJFS filed a complaint

for temporary custody of J.A. and D.V. The complaint alleged that the children were

dependent under R.C. 2151.04. As the case was pending in the juvenile court, father

was arrested in December 2019 and charged with domestic violence under R.C.

2919.25. Mother was granted a domestic-violence protection order against father.

Ultimately, the charge and order were dismissed.

{¶3} In January 2018, the juvenile court adjudicated J.A. and D.V.

dependent and granted HCJFS temporary custody of the children. The children were

placed in foster care. HCJFS developed separate case plans for mother and father. By

June, the magistrate found that mother and father had made “satisfactory progress.”

1R.B. is J.A.’s biological father. Initially, R.B. appealed the juvenile court’s judgment in the appeal
numbered C-210625, but R.B. voluntarily dismissed his appeal.
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{¶4} In September 2018, the court awarded mother and father legal custody

of J.A. and D.V., and granted HCJFS an order of protective supervision. Father lived

with his mother (“grandmother”), and the children moved into grandmother’s house.

{¶5} Then, in December 2018, father was arrested for a third time and

charged with domestic abuse, a violation of R.C. 2919.25. And again, the charges were

dismissed. In January 2019, J.A. and D.V. were placed in the emergency custody of

HCJFS and returned to foster care. In March 2019, the juvenile court adjudicated the

children dependent under R.C. 2151.04, for a second time. And HCJFS reinstated

father’s case plan. At the May 2019 disposition hearing, father agreed to continue

HCJFS’s temporary custody of the children.

{¶6} In the fall of 2019, father moved for permanent custody of J.A. and D.V.

In response, HCJFS moved for permanent custody of the children under R.C. 2151.414.

The children’s guardian ad litem (“GAL”) submitted a report to the juvenile court

recommending awarding HCJFS permanent custody of the children. The yearlong

permanent-custody hearing began in March 2020. Numerous witnesses testified,

including HCJFS caseworkers, J.A.’s therapist, mother, and father. The parties

submitted numerous case plans and court documents into evidence.

{¶7} Following the hearing, the magistrate found that granting permanent

custody of the children to HCJFS was in J.A.’s and D.V.’s best interest under R.C.

2151.414(D). The juvenile court adopted the magistrate’s decision over the objections

of mother and father. Relevant here, the juvenile court found that “[t]he wishes of the

children were not expressed to the Court.”

{¶8} Mother appeals the termination of her parental rights to J.A. and D.V.

in the appeal numbered C-210624. Father appeals the termination of his parental

rights to D.V. in the appeal numbered C-210580.
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II. Law and Analysis

{¶9} A parent’s right to the custody of their child is essential and paramount.

In re D.A., 113 Ohio St.3d 88, 2007-Ohio-1105, 862 N.E.2d 829, ¶ 10, quoting In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990). But it is well settled that

parental rights may be circumscribed if doing so is in the best interest of the child. In

re D.A. at ¶ 11, quoting In re Cunningham, 59 Ohio St.2d 100, 105, 391 N.E.2d 1034

(1979).

{¶10} In Ohio, R.C. 2151.414 authorizes a juvenile court to terminate the legal

relationship between a parent and child. A state agency seeking to terminate the rights

of parents must produce clear and convincing evidence that satisfies the statute’s two-

part test. R.C. 2151.414(B)(1). The parties focus their arguments on the statute’s best-

interest inquiry in the second prong. See R.C. 2151.414(D)(1).

{¶11} The juvenile court must consider all factors relevant to the best interest

of the child. Id. And the Ohio General Assembly has identified five statutory factors in

R.C. 2151.414(D)(1) that the juvenile court must consider:

(a) The interaction and interrelationship of the child with the child’s

parents, siblings, relatives, foster caregivers and out-of-home providers,

and any other person who may significantly affect the child;

(b) The wishes of the child, as expressed directly by the child or through

the child’s guardian ad litem, with due regard for the maturity of the

child;

(c) The custodial history of the child * * *;

(d) The child’s need for a legally secure permanent placement and

whether that type of placement can be achieved without a grant of

permanent custody to the agency;
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(e) Whether any of the factors in divisions (E)(7) to (11) of [R.C.

2151.414] apply in relation to the parents and child.

{¶12} A “child’s best interest is a fluid concept, as it involves the child’s

continually-changing need for appropriate care.” In re D.M., 1st Dist. Hamilton No. C-

200043, 2020-Ohio-3273, ¶ 47, quoting In re G.L.S., 9th Dist. Summit No. 28874,

2018-Ohio-1606, ¶ 16.

{¶13} In determining the best interest of a child, “ ‘[n]o single factor is given

greater weight or heightened significance.’ ” In re P. & H., 1st Dist. Hamilton Nos. C-

190309 and C-190310, 2019-Ohio-3637, ¶ 35, quoting In re C.F., 113 Ohio St.3d 73,

2007-Ohio-1104, 862 N.E.2d 816, ¶ 57. Yet, the juvenile court must “consider” these

factors, meaning the court must “think about [each factor] with a degree of care or

caution.” In re A.M., Slip Opinion No. 2020-Ohio-5102, ¶ 25, quoting State v.

Thompson, 92 Ohio St.3d 584, 588, 752 N.E.2d 276 (2001), fn. 1, quoting Webster’s

Third New International Dictionary 483 (1986). “ ‘[T]here must be some indication

on the record that all of the necessary factors were considered.’ ” In re N.G., 1st Dist.

Hamilton Nos. C-130684 and C-130685, 2014-Ohio-720, ¶ 12, quoting In re G.B., 10th

Dist. Franklin No. 04AP-1024, 2005-Ohio-3141, ¶ 17. This court has repeatedly

encouraged the juvenile court to provide a “careful delineation of its reasoning for each

of the R.C. 2151.414(D)(1)(a) through (d) factors.” In re D.G., 2021-Ohio-429, 168

N.E.3d 43, ¶ 11 (1st Dist.).

A. Mother’s Appeal in C-210624

{¶14} In the appeal numbered C-210624, mother challenges the juvenile

court’s award of permanent custody of J.A. and D.V. to HCJFS. In her first assignment

of error, she argues that the juvenile court failed to consider J.A.’s wishes in its best-

interest analysis as required by R.C. 2151.414(D)(1)(b).
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1. Mother Preserved the Issue on Appeal

{¶15} As an initial matter, HCJFS and the GAL contend that mother failed to

present this argument to the magistrate or in her objections filed with the juvenile

court, and therefore, waived all but plain error.

{¶16} Generally, our review is limited to issues presented to the trial court.

Manchise v. Ionna, 1st Dist. Hamilton No. C-120874, 2013-Ohio-3612, ¶ 12, quoting

Schade v. Carnegie Body Co., 70 Ohio St.2d 207, 210, 436 N.E.2d 1001 (1982). Juv.R.

40(D)(3)(b)(iv) provides, “[e]xcept for a claim of plain error, a party shall not assign

as error on appeal the court’s adoption of any factual finding or legal conclusion * * *

unless the party has objected to that finding or conclusion as required by Juv.R.

40(D)(3)(b).” Plain error applies to “issues which could easily have been raised before

and determined by the trial court.” Cable Busters, LLC v. Mosley, 1st Dist. Hamilton

No. C-190364, 2020-Ohio-3442, ¶ 7, quoting Goldfuss v. Davidson, 79 Ohio St.3d 116,

122, 679 N.E.2d 1099 (1997).

{¶17} Mother sufficiently preserved the issue. She filed timely objections to

the magistrate’s decision. While the magistrate did not identify the child’s wishes, he

acknowledged that the children’s GAL supported awarding HCJFS permanent

custody. This suggests that the magistrate considered the children’s wishes. Mother

challenges the juvenile court’s failure to consider J.A.’s wishes. When the magistrate

issued his findings, the issue did not exist for her to object.

{¶18} The trial court conducted an independent review of the record and

entered its findings, including its explicit admission that it had not considered the

children’s wishes. Mother now challenges the finding of the juvenile court. A similar

objection requirement in Civ.R. 53(D)(3)(b) “ ‘appl[ies] to issues of fact or law the

magistrate decided, and not to those that were decided by the court itself.’ ” Kayrouz
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v. Kayrouz, 12th Dist. Butler No. CA2005-04-096, 2006-Ohio-149, ¶ 4, quoting

Cleveland v. Lancaster, 2d Dist. Greene No. 02CA0123, 2003-Ohio-4976, ¶ 16. Given

the similarities between Civ.R. 53(D)(3)(b) and Juv.R. 40(D)(3)(b), and the

magistrate’s presumed consideration of the children’s wishes, there is no need to

review mother’s first assignment of error under a plain-error standard of review. In re

W.C., 2013-Ohio-153, 986 N.E.2d 572, ¶ 13 (12th Dist.).

2. The Juvenile Court Failed To Consider J.V.’s Wishes

{¶19} Turning to the merits, mother contends that R.C. 2151.414(D)(1)(b)

requires consideration of a child’s wishes when determining that child’s best interest.

According to mother, the juvenile court failed to consider those wishes and committed

reversible error. We agree.

{¶20} The juvenile court must consider “[t]he 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.” R.C. 2151.414(D)(1)(b). While the statute permits a GAL to

convey the child’s wishes to the juvenile court, a GAL’s belief or report stating that

permanent custody is in the best interest of a child is insufficient because the court

must consider the child’s wishes, not the GAL’s. See In re P. & H., 1st Dist. Hamilton

Nos. C-190309 and C-190310, 2019-Ohio-3637, at ¶ 37; In re Lopez, 166 Ohio App.3d

688, 2006-Ohio-2251, 852 N.E.2d 1266, ¶ 36 (3d Dist.).

{¶21} The juvenile court found that “the wishes of the children were not

expressed to the court.” We agree with mother that the juvenile court’s express failure

to consider the wishes of J.A. in its best-interest analysis is a reversible error. See In

re H.M., 2014-Ohio-755, 9 N.E.3d 470, ¶ 30 (3d Dist.). While a court is not required

to make specific findings or provide a written discussion of the statutory factors, the

juvenile court “must consider each statutory factor, including the wishes of a child.” In
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re A.M., Slip Opinion No. 2020-Ohio-5102, at ¶ 31. As such, the record must reflect

some investigation into the child’s wishes. Id. “A trial court ordinarily errs if it

completely fails to address a child’s wishes.” In re S.M., 4th Dist. Highland No. 14CA4,

2014-Ohio-2961, ¶ 32. Here, the record indicates that the juvenile court failed to think

about J.A.’s wishes with a degree of care or caution.

{¶22} In response, HCJFS suggests that J.A. was too young to express his

wishes. Under R.C. 2151.414(D)(1)(b), a juvenile court must be mindful of the maturity

of the children when considering their wishes. To be sure, “it may not be practical to

[consider the child’s wishes] when the child is too young to have or express a

meaningful opinion.” In re S.M. at ¶ 35. Yet, there is nothing in the record to support

HCJFS’s argument. See In re Lopez at ¶ 36. J.A. was eight-years-old when the hearing

concluded. If necessary, the juvenile court may investigate J.A.’s maturity and ability

to express his wishes in a meaningful way. See id. Next, the GAL argues that J.A.’s

wishes were expressed to the juvenile court through mother’s testimony. But

“[t]estimony by a child’s mother does not fulfill the requirements of R.C.

2151.414(D)(2) that a child’s wishes be expressed directly by the child or the child’s

GAL.” In re Walling, 1st Dist. Hamilton No. C-050646, 2006-Ohio-810, ¶ 23.

{¶23} We sustain mother’s first assignment of error. A remand is necessary for

consideration of J.A.’s wishes under R.C. 2151.414(D)(1)(b) in the analysis of J.A.’s

best interest. The juvenile court found that J.A. is protective over his younger sibling

and the two have a close bond. Because the court must consider J.A. and D.V.’s

interactions and relationship pursuant to R.C. 2151.414(D)(1)(a) when it determines

the best interests of both children, J.A.’s best interest is intertwined with D.V.’s best

interest. When “the strongest bond the child has had is with [his] siblings, separating

them would generally not be in their best interest.” In re A.W., 9th Dist. Lorain No.
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08CA009366, 2009-Ohio-1827, ¶ 18, citing In re A.C., 9th Dist. Wayne Nos.

02CA0053, 02CA0054 and 02CA0055, 2003-Ohio-2714, ¶ 44. Therefore, we reverse

the termination of mother’s parental rights to both J.A. and D.V.

{¶24} Mother also argues that the juvenile court was required to determine

whether J.A. was entitled to independent counsel pursuant to In re Williams, 101 Ohio

St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110. In her remaining assignments of error,

she raises manifest-weight and sufficiency challenges to the juvenile court’s decision.

Because mother’s R.C. 2151.414(D)(1)(b) argument is dispositive, we decline to

address her remaining arguments and assignments of error. See App.R. 12(A)(1)(c).

We remand mother’s case to the trial court for further proceedings consistent with our

analysis.

B. Father’s Appeal in C-210580

{¶25} Father challenges the juvenile court’s decision in the appeal numbered

C-210580, with a narrow focus on the grant of permanent custody of D.V. to HCJFS.

Our analysis is limited to the facts relevant to father’s custody of D.V. In his single

assignment of error, father argues that the juvenile court’s decision was against the

manifest weight and sufficiency of the evidence.

{¶26} This court reviews a juvenile court’s grant of permanent custody to

determine if clear and convincing evidence supported its decision. In re L.M.B., 1st

Dist. Hamilton Nos. C-200033 and C-200044, 2020-Ohio-2925, ¶ 8, citing In re A.B.,

1st Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, ¶ 15. Clear and

convincing evidence produces “ ‘ “a firm belief or conviction as to the facts sought to

be established.” ’ ” In re L.M.B. at ¶ 8, quoting In re K.H., 119 Ohio St.3d 538, 2008-

Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus.
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{¶27} A challenge to the sufficiency of the evidence presents a question of law

that we review de novo. In re D.G., 2021-Ohio-429, 168 N.E.3d 43, at ¶ 8, quoting In

re A.B. at ¶ 15, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 11. In a sufficiency challenge, our analysis consists of an independent

review of the record to determine if the evidence presented to the juvenile court was

sufficient to satisfy R.C. 2151.414’s clear-and-convincing standard. In re D.G. at ¶ 8,

citing In re J.W., 1st Dist. Hamilton No. C-190189, 2019-Ohio-2730, ¶ 13, quoting In

re W.W., 1st Dist. Hamilton Nos. C-110363 and C-110402, 2011-Ohio-4912, ¶ 46. In

other words, a sufficiency argument challenges the adequacy of the evidence. In re

A.B. at ¶ 15, citing Eastley at ¶ 11.

{¶28} Father limits his sufficiency argument to the juvenile court’s finding

that the termination of his parental rights was in D.V.’s best interest under R.C.

2151.414(D)(1). Specifically, his argument focuses on two statutory factors—D.V.’s

interactions and interrelationships, and D.V.’s need for a legally secure placement.

{¶29} The juvenile court considered D.V.’s interactions and interrelationships

under R.C. 2151.414(D)(1)(a), and found that father lacked a protective capacity and

minimized the domestic-violence issues. The record contains sufficient evidence to

support this finding. According to the record, father was arrested in September 2017

after he allegedly hit and threatened to shoot Mother just days before D.V.’s birth. In

December 2018, he was arrested after he allegedly punched, kicked, and pushed

mother following an argument at grandmother’s house with the children in another

room. Jasmine Elliot, a HCJFS case worker, testified that father threatened to harm

mother and the children in 2019. Elliot believed that father minimized his violence.

Father testified twice. At first, he denied hitting and threatening mother. To him, the

incidents were merely “verbal” arguments.
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{¶30} Turning to D.V.’s need for a legally secure placement under R.C.

2151.414(D)(1)(d), the juvenile court determined that this factor supported an award

of permanent custody to HCJFS. A legally secure placement “ ‘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.’ ” In re P. & H., 1st Dist. Hamilton Nos. C-190309

and C-190310, 2019-Ohio-3637, at ¶ 42, quoting Matter of K.W., 2018-Ohio-1933, 111

N.E.3d 368, ¶ 87 (4th Dist. 2018).

{¶31} Despite Father’s completion of case-plan services, the juvenile court

found that “the children were again removed only a few short months later again due

to domestic violence issues” in grandmother’s home. Father lives with grandmother

and the evidence shows that his violence recurs in grandmother’s house. Indeed,

father testified that D.V. was in the house when he allegedly punched and kicked

mother in 2018. This supports the court’s finding that father was unable to provide a

secure placement for D.V. Therefore, the evidence was sufficient to support the

juvenile court’s finding that terminating father’s parental rights to D.V. was in D.V.’s

best interest under R.C. 2151.414(D)(1).

{¶32} Father also argues that the juvenile court’s decision to terminate his

parental rights to D.V. was against the manifest weight of the evidence. In a manifest-

weight challenge, we “weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses, and determine whether in resolving conflicts in the

evidence, the trial court clearly lost its way and created such a manifest miscarriage of

justice that the judgment must be reversed and a new trial ordered.” In re A.B., 1st

Dist. Hamilton Nos. C-150307 and C-150310, 2015-Ohio-3247, at ¶ 16, citing Eastley,

132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, at ¶ 12, and State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d
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172, 175, 485 N.E.2d 717 (1st Dist.1983). In our analysis, we are “mindful of the

presumption in favor of the finder of fact.” In re A.B. at ¶ 16, quoting Eastley at ¶ 12,

citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273

(1984), fn. 3.

{¶33} Father argues that he completed his case-plan services and addressed

his domestic-violence issues. He testified that he learned from the case-plan services

and he was not an aggressive person. But his testimony was inconsistent and

contradictory—it undermined his credibility. Initially, he denied having threatened or

attacked mother. Later, he admitted it and acknowledged that he misled the juvenile

court in his earlier testimony. Father testified that he did not own a gun. But he was

arrested in March 2021 for unlawful possession and transportation of a firearm.

Father testified that he stopped smoking marijuana in 2014. Yet, he tested positive for

marijuana in 2020. While he completed his case-plan services, two HCJFS employees

observed no behavioral changes and remained concerned about father’s anger.

{¶34} Two parent-coaching facilitators testified that father’s visitations with

D.V. were positive. But “we cannot reverse the trial court’s judgment because it is

merely contrary to some evidence.” In re A.B. at ¶ 28. Rather, the juvenile court’s

decision “must be so contrary to the probative value of all the admissible evidence that

was before the trial court that we can only conclude that the court lost its way and a

manifest miscarriage of justice resulted.” Id., citing Eastley at ¶ 20-21, and Thompkins

at 387. After a review of the evidence in the record, we are not persuaded that the

juvenile court’s judgment was against the manifest weight of the evidence. Therefore,

we overrule father’s sole assignment of error.

III. Conclusion
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{¶35} Because the juvenile court failed to consider J.A.’s wishes as required

by R.C. 2151.414(D)(1)(b), we reverse the juvenile court’s judgment with respect to

mother in the appeal numbered C-210624 and remand that case to the juvenile court

for further proceedings consistent with this opinion. In the appeal numbered C-

210580, we affirm the juvenile court’s judgment terminating father’s parental rights

to D.V.

Judgment accordingly.

BERGERON, P.J., and WINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.

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