In re J.A.

[Cite as In re J.A., 2022-Ohio-1324.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

IN RE J.A., JR. :
: No. 111029
A Minor Child :
:
[Appeal by K.B., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 21, 2022

Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. AD20901089

Appearances:

Wargo Law, LLC, and Leslie E. Wargo, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Joseph C. Young, Assistant Prosecuting
Attorney, for appellee.

FRANK DANIEL CELEBREZZE, III, P.J.:

Appellant K.B. (“Mother”) appeals the decision of the Cuyahoga County

Juvenile Court terminating her parental rights and awarding custody of her minor

son, J.A., Jr., to the Cuyahoga County Department of Children and Family Services

(“CCDCFS” or “agency”). After a thorough review of the law and applicable facts, we

affirm the judgment of the juvenile court.
 I. Factual and Procedural History

CCDCFS became involved in this matter in January 2020, when J.A.

was placed in agency custody after suffering burns to his lower extremities when he

was just 18 months old. Mother stated that she believed that he had “[done] this to

himself.” J.A. had suffered immersion burns from his knees to his feet, requiring

skin-graft surgery. Medical professionals opined that the injuries were non-

accidental and not consistent with the explanation provided by the family.

In December 2020, the agency moved to modify temporary custody to

permanent custody. In April 2021, a trial was held on the agency’s motion, after

which the trial court denied the motion and continued temporary custody. In its

entry denying the motion, the juvenile court ordered Mother to complete a

substance abuse assessment and follow all recommendations, to submit to drug

testing by CCDCFS by April 28, 2021, and to submit to random drug testing twice a

month, as requested by the agency.

CCDCFS worker T’ara Williams (“Williams”) was assigned to the case

after the denial of permanent custody in April 2021. At that time, she learned that

Mother was engaged in a domestic violence program and a parenting program; she

also claimed to be engaged in mental health services. However, Williams did not

believe that Mother had benefitted from those services. Mother was still residing

with her family in the same home where the incident with J.A. happened where one

of the family members had inflicted serious abuse on J.A. With regard to how the
burns happened, she maintained that J.A. “did this to himself.” Williams was

concerned that Mother lacked empathy for J.A. and the trauma he had endured.

Williams was also concerned that Mother had not benefitted from the

domestic violence services. J.A.’s alleged father1 had been charged with domestic

violence against Mother, and Mother had failed to appear at two different trial dates,

resulting in the case against him being dropped. Further, when Williams asked

Mother if she still maintained a relationship with J.A.’s alleged father, she stated

that she could not because the agency told her she could not. This concerned

Williams because Mother seemed to not recognize that the relationship was

unhealthy and dangerous, but instead only that the agency would not allow her to

continue it.

While Williams did not ever see Mother and J.A.’s alleged father

together, she still had concerns that they were still involved. During the pendency

of this matter, J.A.’s alleged father had been charged with felonious assault (against

another victim), a felony of the second degree. The indictment stated that he had

caused or attempted to cause physical harm using a deadly weapon, which was a

gold SUV. This concerned Williams because Mother also drives a gold SUV, which

Williams had personally seen her drive.

Williams was also concerned whether Mother was receiving mental

health services. Mother provided a phone number for her therapist at Ohio

1 Paternity was not established in this matter. The agency requested that both
Mother and J.A.’s alleged father submit to paternity testing. A caseworker took J.A. for
testing, but neither parent followed through.
Guidestone, but Williams was never able to make contact with the therapist. She

asked Mother to sign a release of information form so that the agency could verify

that she was engaging in mental health services, but Mother did not ever sign any

release.

During the pendency of the case, Mother was charged with aggravated

possession of drugs, a felony of the fifth degree. Williams stated that the offense was

for cocaine, but Mother had told her that it was ecstasy and later stated that it was

marijuana.

Mother was sentenced to probation and was required to provide drug

screens. She was inconsistent with reporting to her probation officer and was later

arrested for failing to comply with the terms of her probation.

Substance abuse services were added to Mother’s case plan. Williams

referred her for a drug assessment through Recovery Resources, but Mother did not

go to the initial intake because she stated that she was “not a crackhead.”

Mother submitted to several urine screens and tested positive for

cocaine and marijuana in June 2021. In July 2021, she tested positive for marijuana.

Mother was referred for additional screens but did not comply.

Mother’s visitation with J.A. had been inconsistent but became more

consistent in early July 2021. Many of her visits with J.A. had been virtual due to

COVID concerns, and Mother was often not engaged during these visits. When

Williams was assigned to the case, the visits became in-person each week with
Williams supervising. Mother attended approximately 75 percent of the visits and

either canceled or simply did not show up to the rest.

In July 2021, CCDCFS again moved to modify temporary custody of

J.A. to permanent custody. The motion stated that Mother had failed to complete

the ordered drug and alcohol assessment, had failed to consistently submit to

random drug screens, had tested positive for cocaine and marijuana in June 2021,

and had failed to engage in mental health services. The motion further noted that

Mother had failed to address ongoing domestic violence concerns and failed to

consistently visit with J.A.

Trial was held on the motion in October 2021. Testimony was

presented from Williams and the guardian ad litem, Paul Berman. Both Williams

and the GAL testified that granting permanent custody to the agency was in the best

interest of J.A. Following the hearing, the trial court granted the motion for

permanent custody to CCDCFS and terminated Mother’s parental rights.

Mother then filed the instant appeal, raising one assignment of error

for our review:

The evidence presented to the trial court did not support, by clear and
convincing evidence, a finding that permanent custody to the agency
was in the best interests of the child; whereas an extension of
temporary custody should have been granted.

II. Law and Analysis

The right to raise one’s own child is “‘an essential and basic civil right.’”

In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 67, quoting In re
Hayes, 79 Ohio St.3d 46, 48, 679 N.E.2d 680 (1997); see also In re Murray, 52 Ohio

St.3d 155, 156, 556 N.E.2d 1169 (1990), quoting Santosky v. Kramer, 455 U.S. 745,

753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (a parent has a “‘fundamental liberty

interest’ in the care, custody, and management” of his or her child). However, this

right is not absolute. It is “‘always subject to the ultimate welfare of the child, which

is the polestar or controlling principle to be observed.’” In re L.D., 2017-Ohio-1037,

86 N.E.3d 1012, ¶ 29 (8th Dist.), quoting In re Cunningham, 59 Ohio St.2d 100, 106,

391 N.E.2d 1034 (1979).

Because termination of parental rights is “‘the family law equivalent of

the death penalty in a criminal case,’” In re J.B., 8th Dist. Cuyahoga No. 98546,

2013-Ohio-1704, ¶ 66, quoting In re Hoffman, 97 Ohio St.3d 92, 2002-Ohio-5368,

776 N.E.2d 485, ¶ 14, it is “an alternative of last resort.” In re Gill, 8th Dist.

Cuyahoga No. 79640, 2002-Ohio-3242, ¶ 21. It is, however, “sanctioned when

necessary for the welfare of a child.” In re M.S., 8th Dist. Cuyahoga Nos. 101693 and

101694, 2015-Ohio-1028, ¶ 7, citing In re Wise, 96 Ohio App.3d 619, 624, 645

N.E.2d 812 (9th Dist.1994). “‘All children have the right, if possible, to parenting

from either natural or adoptive parents which provides support, care, discipline,

protection and motivation.’” In re J.B. at ¶ 66, quoting In re Hitchcock, 120 Ohio

App.3d 88, 102, 696 N.E.2d 1090 (8th Dist.1996). Where parental rights are

terminated, the goal is to create “a more stable life for the dependent children” and

to “facilitate adoption to foster permanency for children.” In re N.B. at ¶ 67, citing
In re Howard, 5th Dist. Tuscarawas No. 85 A10-077, 1986 Ohio App. LEXIS 7860,

5 (Aug. 1, 1986).

Before a juvenile court can terminate parental rights and grant

permanent custody of a child to CCDCFS, it must satisfy the two-prong test set forth

in R.C. 2151.414. First, the juvenile court must find by clear and convincing evidence

that one of the following conditions set forth in R.C. 2151.414(B)(1)(a) through (e)

exists:

(a) The child is not abandoned or orphaned, has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period, or has not been in the
temporary custody of one or more public children services agencies or
private child placing agencies for twelve or more months of a
consecutive twenty-two-month period if, as described in division (D)(1)
of section 2151.413 of the Revised Code, the child was previously in the
temporary custody of an equivalent agency in another state, and the
child cannot be placed with either of the child’s parents within a
reasonable time or should not be placed with the child’s parents.

(b) The child is abandoned.

(c) The child is orphaned, and there are no relatives of the child who
are able to take permanent custody.

(d) The child has been in the temporary custody of one or more public
children services agencies or private child placing agencies for twelve
or more months of a consecutive twenty-two-month period, or the child
has been in the temporary custody of one or more public children
services agencies or private child placing agencies for twelve or more
months of a consecutive twenty-two-month period and, as described in
division (D)(1) of section 2151.413 of the Revised Code, the child was
previously in the temporary custody of an equivalent agency in another
state.

(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.

Second, the juvenile court must find by clear and convincing evidence

that granting permanent custody to the agency is in the best interest of the child.

R.C. 2151.414(B)(1). “Clear and convincing evidence” is that measure or degree of

proof that “produce[s] in the mind of the trier of fact a firm belief or conviction as to

the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus; In re M.S. at ¶ 8. A juvenile court’s

decision to grant permanent custody will not be reversed as being against the

manifest weight of the evidence “if the record contains some competent, credible

evidence from which the court could have found that the essential statutory

elements for permanent custody had been established by clear and convincing

evidence.” In re A.P., 8th Dist. Cuyahoga No. 104130, 2016-Ohio-5849, ¶ 16.

In this case, CCDCFS moved for permanent custody under R.C.

2151.414(B)(1)(d), which provides that the child had been in agency custody for 12

or more months of a consecutive 22-month period. The trial court determined that

this condition was satisfied — J.A. had been in agency custody for over 20 months

of a consecutive 22-month period. Mother does not dispute this finding but argues

that the juvenile court should have extended temporary custody and allowed her

more time to engage in her case plan. Consequently, we need only determine if

permanent custody was in the best interest of J.A.
 Mother asserts that at the time of the hearing, she had completed a

parenting program. While the social worker testified that parenting was a concern,

Mother argues that she never referred Mother to a parenting coach or made any

other additional referrals to address the issue. In addition, while there was also

concern about Mother having a psychological evaluation, the case worker never

made a psychological evaluation referral for Mother; regardless, Mother maintains

that she had engaged in counseling services through Ohio Guidestone. Additionally,

with regard to the domestic violence issue, Mother completed a domestic violence

course well before the hearing, and no additional referrals were made for Mother on

this issue.

Mother further contends that the agency had no concerns with

Mother’s visitation with J.A. Williams testified that as J.A. has become older and

has seen his mother more regularly, he understands better who she is and becomes

excited to see her.

We review a juvenile court’s determination of a child’s best interest

under R.C. 2151.414(D) for abuse of discretion. In re D.A., 8th Dist. Cuyahoga No.

95188, 2010-Ohio-5618, ¶ 47. An abuse of discretion implies that the court’s

decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,

5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

In determining the best interest of a child at a hearing held pursuant

to R.C. 2151.414(A)(1), the juvenile court must consider all relevant factors,

including, but not limited to, the following:
 (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, including whether 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 * * *;

(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;

(e) Whether any of the factors in divisions (E)(7) to (11) of this section
apply in relation to the parents and child.

R.C. 2151.414(D)(1).

A juvenile court is required to consider each relevant factor under R.C.

2151.414(D)(1) in making a determination regarding permanent custody, but

“[t]here is not one element that is given greater weight than the others pursuant to

the statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532,

¶ 56. This court has previously stated that only one of these enumerated factors

needs to be resolved in favor of the award of permanent custody. In re Moore, 8th

Dist. Cuyahoga No. 76942, 2000 Ohio App. LEXIS 3958 (Aug. 31, 2000), citing In

re Shaeffer Children, 85 Ohio App.3d 683, 621 N.E.2d 426 (3d Dist.1993). Further,

the Supreme Court of Ohio has clarified that “R.C. 2151.414(D)(1) does not require

a juvenile court to expressly discuss each of the best-interest factors in R.C.
2151.414(D)(1)(a) through (e). Consideration is all the statute requires.” In re A.M.,

Slip Opinion No. 2019-0923, 2020-Ohio-5102, ¶ 31.

Here, the juvenile court stated that it considered the relevant factors

set forth under R.C. 2151.414(D)(1) when assessing J.A.’s best interests. Upon

careful review of the record, we do not find that the juvenile court abused its

discretion in determining that permanent custody was in J.A.’s best interest.

R.C. 2151.414(D)(1)(a) relates to the interaction and interrelationship

of the children with various significant individuals in the child’s life, including

parents, siblings, relatives, and foster caregivers. The record demonstrates that J.A.

had been placed with his maternal great aunt, who was interested in adopting him.

There was testimony that J.A. was in a loving home with a caregiver that he trusted.

While Mother’s visitation with J.A. had become more consistent as

the case went on, there was testimony that she did not show or canceled

approximately 25 percent of the visits. She was engaged with J.A. during these

visits, and he had grown to be excited for the visits and come to recognize her as his

mother. However, this court has stated that “‘the mere existence of a good

relationship is insufficient. Overall, we are concerned with the best interest of the

child, not the mere existence of a relationship.’” In re K.M., 8th Dist. Cuyahoga No.

95374, 2011-Ohio-349, ¶ 23, quoting In re R.N., 8th Dist. Cuyahoga No. 83121,

2004-Ohio-2560.

There was also testimony that Mother did not appear to have empathy

toward J.A. regarding the burns he had incurred and did not seem to accept that
someone in her family had seriously abused her son and instead chose to believe

that he had done it to himself.

Under R.C. 2151.414(D)(1)(b), the juvenile court was to consider the

child’s wishes as expressed directly or through their GAL. At the time of trial, J.A.

was only three years old and too young to express his wishes in regard to permanent

custody. “The juvenile court properly considers the GAL’s recommendation on the

permanent-custody motion as part of the R.C. 2151.414(D)(1)(b) analysis where the

children are too young to express their wishes.” In re B/K Children, 1st Dist.

Hamilton No. C-190681, 2020-Ohio-1095, ¶ 45. In the instant matter, the GAL

recommended permanent custody to CCDCFS, based upon Mother’s only partial

completion of the case plan, her failure to demonstrate that she did not have a

substance abuse issue, her failure to demonstrate that she is attending therapy,

J.A.’s status as a special needs child, and his current placement in a loving home

with a secure caretaker.

R.C. 2151.414(D)(1)(c) is relative to the child’s custodial history, which

Mother concedes. As noted above, J.A. has been in the custody of the agency for

over 20 months, over half of his life.

R.C. 2151.414(D)(1)(d) relates to the child’s need for a legally secure

placement and whether that can be achieved without a grant of permanent custody.

The trial court in this case found that J.A. cannot be placed with one of his parents

within a reasonable time or should not be placed with either parent. Specifically,

the trial court made findings under R.C. 2151.414(E) including Mother’s “failure to
remedy” and “lack of commitment.” “‘Once a court determines, by clear and

convincing evidence, that one of the enumerated factors exists, the court must enter

a finding that the child cannot or should not be placed with either of his parents

within a reasonable time.’” In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-Ohio-

4126, ¶ 43, quoting In re Glenn, 139 Ohio App.3d 105, 113, 742 N.E.2d 1210 (8th

Dist.2000). As noted above, paternity was not established and J.A.’s alleged father

is not a part of this matter.

Under R.C. 2151.414(D)(1)(e), the juvenile court was to consider

whether any of the factors in divisions (E)(7) to (11) of R.C. 2151.414 applied in

relation to Mother and J.A. Although it did not distinguish between Mother or the

alleged father, the trial court found that one of the parents had abandoned the child.

Clearly, this must relate only to J.A.’s alleged father as there was no evidence that

Mother had abandoned J.A. While none of the remaining factors in R.C.

2151.414(E)(7) to (11) apply to Mother, the court was only required to consider all of

the factors in 2151.414(D)(1) in determining the best interest of J.A.; it did not have

to find that each factor applied.

The above-mentioned findings were all supported by the testimony

presented at trial. Moreover, the court was guided by the recommendation of the

GAL, who spoke on behalf of J.A. and recommended that it was in J.A.’s best interest

to grant the agency permanent custody.

Mother argues that the sole issue that remained, and that she should

have been given additional time to address, was the substance abuse aspect. Mother
acknowledges that she failed drug screens but maintains that temporary custody

could have been extended to allow her time to address the substance abuse issue.

R.C. 2151.353(G) provides that the statutory term for a temporary

custody order is one year. While the agency is permitted to seek up to two six-month

extensions of temporary custody, the decision to exercise that statutory right is left

in the sound discretion of the agency and is not mandated by statute. See R.C.

2151.415(A)(6) and (D)(1)-(4). See also In re A.C., 2d Dist. Montgomery No. 26211,

2014-Ohio-4402, ¶ 18 (noting that “[the agency] was not required to seek an

extension of temporary custody * * * [and] was entitled to move for permanent

custody rather than to seek an extension”). The juvenile court may extend

temporary custody if it finds that extension is (1) in the best interest of the child, (2)

significant progress has been made on the case plan, and (3) “there is reasonable

cause to believe that the child will be reunified with one of the parents or otherwise

permanently placed within the period of extension.” R.C. 2151.415(D)(1).

We disagree with Mother that an extension was warranted in this

matter. J.A. had been in the custody of CCDCFS for over 20 months and yet Mother

had not completed her case plan. She did not fully comply with the juvenile court’s

order to submit to urine screens, and when she did actually submit to screens, she

twice tested positive for drugs. In addition, Mother was charged with felony drug

possession and later violated her probation from that case.

While Mother contends that the substance abuse was the only

problem, Williams testified that there were other concerns about Mother, including
her failure to remedy issues and her lack of commitment. Williams testified that

since July 2021, Mother’s visits with J.A. were weekly in-person with Mother

attending approximately 75 percent of the visits. During the visits, Mother engaged

with J.A. and was attentive to him “for the most part.” Williams testified that J.A.

did not readily recognize Mother when the visits began, but later would become

more excited about the visits and disappointed when the visits were canceled.

Williams stated that J.A. was learning Mother as his mother.

Williams testified that J.A. is a very sweet child, but he does not

communicate well. He is three years old but verbalizes and functions as an 18-

month-old. He cannot express if there is a problem and cannot identify the cause of

any discomfort or frustration. Williams testified that this concerned the agency

because if he were to be returned to Mother and something happened, they would

not know.

In addition, there are concerns that J.A. may be autistic, and at the

time of trial, he was on a waiting list to be evaluated. Mother does not believe that

there is an issue regarding autism and that “that’s just how he is,” which also

presented a concern for the agency.

Moreover, J.A. suffers from lingering trauma from the burns he

incurred. Williams testified that she is concerned because Mother does not appear

to have empathy for J.A. nor does she acknowledge that someone in her family

seriously abused J.A.
 The fact that Mother has been visiting J.A. more consistently does not

negate the evidence demonstrating her failure to complete her case plan services by

the time trial commenced. See In re A.L.A. & A.S.A., 11th Dist. Lake Nos. 2011-L-

020 and 2011-L-021, 2011-Ohio-3124, ¶ 108 ( A parent “is afforded a reasonable, not

an indefinite, period of time to remedy the conditions causing the children’s

removal.”).

We note that Mother was already given additional time to complete

her case plan when the court originally denied the agency’s motion for permanent

custody in April 2021. Rather than utilizing the additional time, appellant did not

comply with the amendments to her case plan ordered by the trial court and

continued to abuse drugs, even being charged with aggravated possession of

cocaine. There is no evidence in the record that it would be beneficial to J.A. to allow

Mother to have additional time to try to achieve what she already should have

accomplished. Accordingly, the juvenile court properly found that an extension of

temporary custody was not in J.A.’s best interest.

III. Conclusion

After thoroughly reviewing the entire record, we affirm the juvenile

court’s judgment granting permanent custody of J.A. to CCDCFS. The juvenile

court’s judgment was not against the manifest weight of the evidence, and an

extension of temporary custody was not warranted. Mother’s sole assignment of

error is overruled.

Judgment affirmed.
 It is ordered that appellee recover from appellant 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

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
LISA B. FORBES, J., CONCUR