In re D.J. - Case Law

[Cite as In re D.J., 2022-Ohio-4195.]

COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT

IN THE MATTER OF: D.J. : JUDGES:
:
: Hon. John W. Wise, P.J.
: Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
:
: Case No. 22CA07
:
:
:
:
: OPINION

CHARACTER OF PROCEEDING: Appeal from the Knox County Court of
Common Pleas, Juvenile Division, case
no. 221-2069

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 22, 2022

APPEARANCES:

For Appellee Agency: For Appellant Mother:

ASHLEY JOHNS MARY LOU RANNEY
Knox Co. DJFS 401 W. High St.
117 East High St. Suite 7
Mount Vernon, OH 43050 Mount Vernon, OH 43050
[Cite as In re D.J., 2022-Ohio-4195.]

Delaney, J.

{¶1} Defendant-Appellant M.J. (“Mother”) appeals from the April 21, 2022

Judgment Entry of the Knox County Court of Common Pleas, Juvenile Division, granting

custody of her children D.J. and J.J. to the Knox County Department of Job and Family

Services (“Agency”).

{¶2} The instant case is related to, but not consolidated with, In the Matter of:

J.J., 5th Dist. Knox No. 22CA08.

FACTS AND PROCEDURAL HISTORY

{¶3} Mother and Father have three biological children: T.J (age 16, in a Planned

Permanent Living Arrangement which is not at issue in this appeal); D.J. (DOB

8/31/2006); and J.J. (DOB 4/26/2011).1 “The children” will henceforth refer to D.J. and

J.J.

{¶4} This case arose on August 3, 2016, when the Agency filed a motion for ex

parte temporary custody of the children, which was granted. The matters have twice

been refiled due to the statutory time frame for case completion, but the children have

remained in the continuous custody of the Agency since August 3, 2016. On or around

December 22, 2016, the Agency learned of alleged sexual abuse of the children that

occurred while in Mother’s custody. The children were taken to Nationwide Children’s

Hospital and disclosed physical and sexual abuse.

1
Father is not a party to this appeal. He was never added to the case plan due to his
incarceration and has made no effort to contact the Agency regarding the children. He
has not visited with the children since before they were removed in 2016 and has not
requested visitation.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶5} On November 8, 2018, the Agency filed a motion to dismiss the initial cases

because the time frame for completion had elapsed pursuant to R.C. 2151.353(G).

Complaints were refiled the same day. Those cases proceeded to adjudication, and on

January 19, 2019 the trial court issued a judgment entry memorializing its decision but

failing to comply with R.C. 2151.28(L). This Court reversed and remanded the judgment

of the trial court, directing the trial court to issue findings of fact and conclusions of law in

compliance with R.C. 2151.28(L). Matters of T.J., 5th Dist. Knox No. 19CA02, 2019-Ohio-

3626, ¶ 11.

{¶6} On June 24, 2021, the Agency again dismissed and refiled the cases to

maintain compliance with R.C. 2151.353(G) as trial court case numbers 221-2069 and

221-2070, the cases at issue in the instant appeal. The complaints alleged abuse and

dependency.

{¶7} On August 19, 2021, the children were adjudicated dependent by

agreement of the parties, with a stipulated finding that “the minor children have suffered

physical and sexual abuse and their behaviors in response to that trauma create a

significant safety risk, [Mother] was not identified as a perpetrator of abuse, however,

despite significant therapeutic interventions, the children cannot safely reside together in

[Mother’s] home.” The children remained in the Agency’s temporary custody following a

dispositional hearing on September 23, 2021.

{¶8} The Agency filed a motion for permanent custody on October 27, 2021, and

a hearing was held on March 18, 2022. On April 21, 2022, the trial court granted the

Agency’s motion via judgment entry.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶9} The following evidence is adduced from the record of the permanent

custody hearing.

{¶10} The Agency has received reports about Mother since 2003, which predates

the birth of the children. The instant case arose in 2016 from allegations of an unsafe

home environment in Knox County where Mother resided with Grandmother and the

children. Upon investigation, the home was found to contain excessive trash and

cockroaches, and the children struggled to maintain basic hygiene.

{¶11} Three different caseworkers have served as the primary caseworker in this

matter; one—Parks—testified at the evidentiary hearing. Parks was the primary

caseworker for less than four months.

{¶12} At removal, J.J. was 5 years old, D.J. was 9 years old, and their brother T.J.

was 11 years old. The three siblings were placed together in one foster home along with

their cousin (“Cousin”). The siblings later disclosed sexual abuse, some of which was

allegedly perpetrated by Cousin, and Cousin was relocated. Forensic interviews of the

siblings were completed at Nationwide Children’s Hospital in January 2017 and sexual

abuse allegations were substantiated as follows: sexual abuse by Cousin against all three

siblings; physical abuse of T.J. and D.J. by Ricki Mathews; sexual abuse of D.J. by Father;

and sexual abuse of T.J. by John Campbell.

{¶13} After removal, Mother had supervised visits with the children at the Agency.

Parks supervised at least one of the visits, and the guardian ad litem (“GAL”) supervised

a visit in December 2017. Mother was appropriate with the children during these visits.

{¶14} Mother obtained an apartment and had supervised visitation with the

children there, progressing to unsupervised overnight visits. One condition of Mother’s
[Cite as In re D.J., 2022-Ohio-4195.]

contact with the children required her to prohibit access to the internet due to the

children’s proclivity to seek out inappropriate sexual material. At the home visit, however,

Mother provided tablets and cell phones, and the children used the devices to access

pornography online. In the Agency’s estimation, Mother failed to demonstrate that she

understood the importance of limiting the children’s access to the internet, and of the need

to set boundaries, to prevent the children from offending against each other sexually.

Mother’s in-home visitation was terminated for this reason.

{¶15} After the beginning of the Covid pandemic, Mother began visitation with the

children at a park. Mother was evicted from her apartment allegedly for lying about her

custody status with the children. After the eviction, Mother lived with a friend for a few

months.

{¶16} Mother now lives with her boyfriend Austin, Austin’s mother, and Austin’s

uncle; they have lived in the apartment for six months and Mother and the other adults

pay rent and utilities for the apartment. Austin does not have a criminal record but was a

foster child due to substantiated abuse against him by his mother’s boyfriend. The

Agency has serious concerns about Austin’s mother because of her history of abuse and

neglect of Austin. Austin’s mother lives with Mother in the apartment.

{¶17} The Agency has visited the apartment several times and Parks testified that

it is relatively clean, although it is small for four adults. The G.A.L. has not visited the

apartment. Mother testified that if she obtains custody of the children, she and the other

adults have pledged to share rooms so that one child would have a room of his or her

own. Mother also testified she will find a bigger place to live but has not applied for one

as of the date of the evidentiary hearing.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶18} Mother’s visitation with D.J. and J.J. presently takes place for one hour,

every two weeks, at a local mall. Mother schedules the visits directly with the children’s

foster families and does not go through the Agency. The children have not visited Mother

at the apartment.

{¶19} Mother’s case plan required her to obtain a mental health assessment and

follow all recommendations. Parks testified that Mother has neither obtained the

assessment nor attended counseling; Mother believes she completed a mental health

assessment several years ago and a psychological evaluation at the Agency’s request.

Mother believed her assessment was at BHP, but didn’t know whether BHP made any

further recommendations, and assumed BHP sent a report to Agency. The GAL obtained

a release from Mother, but BHP did not provide any records. In short there is no evidence

Mother completed a mental health assessment. The GAL recommended that Mother

engage in counseling to help her understand the children’s trauma and their current

needs, but Mother did not follow the recommendation.

{¶20} Mother does not remember all the requirements of the case plan but

believes she has completed them. She wanted the Agency to facilitate “family

counseling,” but family therapy was not recommended by mental health professionals

until the children were willing to discuss their past trauma.

{¶21} Mother successfully completed parenting education and consistently

attended available visitation with the children. Mother does not have her own vehicle but

found transportation to enable her to attend visitation; she declined vouchers from the

Agency and met this need herself.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶22} Mother has maintained employment for the past five years and has the

financial means to care for the children. Mother provides direct support for individuals

with disabilities, including helping them with independent living skills, and is certified in

CPR. Mother works approximately 30 hours per week.

{¶23} Mother requested that the Agency place the children with her brother

(“Brother”) after they were removed from the first foster home and separated. The Agency

rejected Brother as a possibility because Brother has custody of Cousin, the individual

who allegedly perpetrated sexual abuse against the children. Brother also struggles to

maintain stable housing, making him unsuitable for placement even after Cousin is

emancipated. Brother has not filed anything with the trial court seeking custody of either

child.

{¶24} D.J. and J.J. currently reside in separate foster homes.2

{¶25} J.J. was diagnosed with ADHD and PTSD after her removal from the home

and has worked with three different therapists. Her current therapist has worked with her

for five months and indicated J.J. has not made progress, but the therapist will continue

to attempt to build trust. J.J. has cognitive delays, unhealthy boundaries, and a lack of

knowledge about how to maintain her own safety. She told peers at school she enjoys

inappropriate sexualized behavior, and will climb into the lap of a complete stranger

unless redirected. Parks, the GAL, and J.J.’s therapist agree that she requires constant

supervision to maintain her boundaries and prevent inappropriate interaction. J.J.

2
The children’s older brother T.J. has lived at an independent living facility two hours
away for the past year, and has not had visits with Mother or the children. T.J. has
behavioral issues and a pending delinquency matter; Mother does not have transportation
to enable her to visit with T.J. and the Agency has not provided transportation.
[Cite as In re D.J., 2022-Ohio-4195.]

struggles with school and has an IEP. J.J. is bonded with Mother but not with her siblings.

She changes her mind frequently about where she would like to live, although presently

her preferences, in order, are with Mother, Brother, or with her foster family.

{¶26} D.J. is generally a happy child and does well in school. He is excited to visit

with Mother but does not ask about his siblings. D.J. struggled in his original foster home

and disclosed sexual abuse there, but is bonded with his current foster family. His

behavior deteriorated after the death of his foster mother, but he is back on track again.

He is impulsive and has engaged in sexualized behaviors which have now almost

stopped. He attends counseling but does not talk about past trauma; he has recanted

then restated allegations of abuse. Mental health professionals recommended continued

therapy. D.J. would like to live with his Mother, or else with his foster family.

{¶27} The children’s past trauma and history of sexual abuse has made family

counseling and living together in one household inadvisable. Although the Agency

planned to engage Mother and the children in family counseling, mental health

professionals recommended against it because the children are not open about their past

trauma. They also recommended against allowing the siblings to reside in the same

household due to their sexualized behaviors. J.J. is unable to protect herself and requires

constant supervision; D.J. also lacks boundaries.

{¶28} Mother has not had custody of the children since their initial removal on

August 3, 2016. The initial concerns at removal involved the physical conditions of

Mother’s home and the children’s hygiene, but additional concerns of sexual and physical

abuse arose during the pendency of the case. Mother denies knowledge of the physical

and sexual abuse, and says she would have intervened if she would have known. Despite
[Cite as In re D.J., 2022-Ohio-4195.]

the Agency telling her the children disclosed abuse, Mother told the trial court she was

unaware of the identity of any alleged perpetrator and of the details of the abuse until she

read reports from Nationwide Children’s Hospital. The Agency and the GAL remain

concerned about Mother’s ability to care for the children due to the need for constant

supervision. The Agency and the GAL also believe Mother does not understand the need

for constant supervision to prevent future abuse or inappropriate sexualized behaviors.

{¶29} The motion for permanent custody was premised upon Mother’s inability to

set boundaries for the children; her apparent lack of understanding of the children’s

needs; and her lack of appropriate housing due to inappropriate adults who reside in

Mother’s apartment.

{¶30} Mother stated that the number of adults living in the apartment will help her

supervise the children; she told the trial court she would “do the best to keep an eye on

them” if they return home. She stated the children will not have internet access and she

has previously grounded them for inappropriate behavior. She stated the Agency has not

given her an opportunity to show that she is able to care for the children. If the trial court

does not permit the children to reside in the same household, Mother stated that Brother

would be willing to care for the other child.

{¶31} The GAL recommended that the trial court grant the Agency’s motion for

permanent custody.

{¶32} The trial court found the children have been in the temporary custody of the

Agency for twelve or more months of a consecutive twenty-two-month period.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶33} By an Opinion and Judgment Entry filed April 21, 2022, the trial court

granted the motion of the Agency for permanent custody of D.J. and J.J. Mother now

appeals from that Opinion and Judgment Entry.

{¶34} Mother raises four assignments of error:3

ASSIGNMENTS OF ERROR

{¶35} “I. THE TRIAL COURT ERRED IN RELYING UPON THE TESTIMONY OF

THE RECORDS CUSTODIAN OF THE AGENCY TO THE EXTENT THAT THE

TESTIMONY CONTAINED INADMISSIBLE HEARSAY.”

{¶36} “II. THE TRIAL COURT’S AWARD OF PERMANENT CUSTODY TO THE

AGENCY WAS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, AND WAS NOT IN THE BEST

INTEREST OF J.J. AND D.J.”

{¶37} [“III.] THE TRIAL COURT PLAINLY ERRED WHEN IT FAILED TO APPLY

AND ENFORCE R.C. 2151.218(A) AND (I) WITH RESPECT TO THE GUARDIAN AD

LITEM FOR J.J. AND D.J.”

{¶38} [“IV.] THE TRIAL COURT PLAINLY ERRED BY ADMITTING THE

TESTIMONY OF THE GUARDIAN AD LITEM.”

3
Mother’s assignments of error are numbered I., II., IV., and V. in her brief. There are
four total assignments of error and III. has been omitted or mislabeled. In this opinion
and the related case, we have re-numbered the four assignments of error in consecutive
order.
[Cite as In re D.J., 2022-Ohio-4195.]

ANALYSIS

{¶39} In her first assignment of error, Mother argues the trial court should not have

permitted the Agency’s records custodian to testify to the contents of its records regarding

the family’s history with the Agency. We disagree.

{¶40} During the permanent custody hearing, the Agency called Danielle Swindell

as a witness. Swindell’s title is Social Services Administrator; she is the Agency’s keeper

of records. After Swindell was sworn, the following conversation was had:

* * * *.

[Counsel for the Agency]: And are you familiar with the [J.]

case?

[Swindell]: I am.

[Counsel for the Agency]: Okay. And are you also the

agency’s keeper of records?

[Swindell]: Correct.

[Counsel for the Agency]: Okay. Can you describe for the

Court what the history looks like with the agency’s involvement with

the [J.] family?

[Mother’s Counsel]: I’m going to object, Your Honor.

THE COURT: Based on?

[Mother’s Counsel]: The objection is hearsay and it is going

to be an ongoing objection because the testimony is going to come

from documents. I realize she is a keeper of the record and so by
[Cite as In re D.J., 2022-Ohio-4195.]

being keeper of the record things can come in. However, I want it on

the record that I’m objecting under the hearsay and it will be an

ongoing objection to any testimony off the records by the agency.

THE COURT: How does that not fit into the records

exception?

[Mother’s Counsel:] I said I know she is going to be able to

bring things in. I will pull this together later on.

THE COURT: You are going to pull what together later on?

[Mother’s Counsel]: I’m sorry, I just wanted it on the record.

You can go ahead and overrule it.

THE COURT: I need to know what the specific objection is.

So nothing has been—a blanket objection to anything that she is

testifying to out of a record that is kept in the normal course of

business of JFS?

[Mother’s Counsel]: Yes.

THE COURT: Then you know that I’m going to overrule that,

if you are acknowledging that it fits into an exception of hearsay.

[Mother’s Counsel]: Yes, Your Honor.

THE COURT: Okay. Then I will overrule that objection.

[Agency Counsel], you may reask the question just so we are

back on the same page.

* * * *.

T. 38-40.
[Cite as In re D.J., 2022-Ohio-4195.]

{¶41} Swindell then testified that the Agency’s history with the family dates to

2003. There have been 23 reports of abuse, neglect, and dependency, with 5 reports

“substantiated,” 2 reports “indicated,” and 3 reports unsubstantiated. The remaining

reports are information and referrals without outcomes. The Agency had an ongoing case

plan with Mother including mental health assessments, counseling, foster care services,

and facilitation of visitation. Concerns arose during Mother’s contact with the children

including access to cell phones, pornography, and sexual material. Swindell catalogued

the Agency’s history with Mother’s boyfriend Austin, noting Austin was a victim of

substantiated neglect by his mother; the mother also lived in the apartment with Austin

and Mother. Austin was sexually abused by his mother’s boyfriend. Therefore, the

Agency would not find Mother’s apartment to be a suitable residence for the children in

the instant case. Swindell noted Mother has declined Agency vouchers for transportation

and found her own transportation to visitation.

{¶42} The Agency’s counsel then asked Swindell whether she had concerns

regarding Mother’s ability to parent the children, and Swindell replied that she does not

believe Mother understands the children’s level of need. J.J. cannot protect herself and

D.J. has inappropriate boundaries.

{¶43} On appeal, Mother argues Swindell’s testimony constitutes impermissible

hearsay. “Hearsay” is defined as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter

asserted.” Evid.R. 801(C). We examined a similar argument in Matter of T.G., 5th Dist.

Stark No. 2021CA00119, 2022-Ohio-1213. We noted that in In re Z.T., 8th Dist. Cuyahoga

No. 88009, 2007-Ohio-827, ¶ 21, the Eighth District found that a social
[Cite as In re D.J., 2022-Ohio-4195.]

worker's testimony as to the contents of the agency's case file is an exception to the rule

against hearsay according to Evid.R. 803(6) and Evid.R. 803(8). The Eighth District

stated:

Evid.R.803(6) creates a hearsay exception for records kept in

the ordinary course of business. See In re McCullough (Dec. 6,

2001), Cuyahoga App. No. 79212. Likewise, Evid.R. 803(8) creates

a hearsay exception for public records and reports which set forth

the activities of an agency or office and contain matters observed

which, pursuant to a duty of law, the agency or office has a duty to

report. See In re Brown, [sic] Athens App. No. 06CA4, 2006-Ohio-

2863, at ¶32, fn.1; In re Garvin (June 15, 2000), [sic] Cuyahoga App.

Nos. 75329 and 75410. Id.

{¶44} Under either exception, a social worker's testimony concerning records kept

by the agency, statements made by a parent, and reports taken during the course of the

agency's investigation, are admissible because the contents of her file, including the

reports against the family, had been compiled as part of the Agency's activities. Matter of

D.M., 5th Dist. Guernsey No. 18 CA 18, 2018-Ohio-4737, ¶ 27. As such, a caseworker in

a supervisory capacity may testify to the contents of the case file. Id., ¶ 74.

{¶45} In the instant case, therefore, Swindell’s testimony regarding the contents

of the Agency’s records is admissible if the testimony relates to the activities of the Agency

and contains matters observed which, pursuant to a duty of law, the Agency has a duty

to report. Id. Upon our review of the record, the properly-admissible testimony related to

the history of the family with the Agency, the contents of the case plan, and the Agency’s
[Cite as In re D.J., 2022-Ohio-4195.]

documented objections to the apartment as a suitable residence for the children. Mother

argues that Swindell’s testimony that Mother failed to complete a mental health

assessment and the Agency had grave concerns about the apartment due to the

presence of Austin’s mother are impermissible hearsay, but this evidence is admissible

as portions of reports compiled as part of the Agency’s activities.

{¶46} In contrast, Swindell’s testimony regarding her own conclusions regarding

Mother’s suitability departs from cataloguing the Agency’s handling of the case. Mother

did not object to this testimony, however, instead making a general “continuing objection”

to all of Swindell’s testimony. Mother did not renew the objection to Swindell’s testimony.

While a continuing objection is sometimes enough to preserve error, a blanket objection

to an entire witness is insufficient to provide a basis for review. See, State v. Henness,

79 Ohio St.3d 53, 59, 679 N.E.2d 686 (1997), citing Brady v. Stafford, 115 Ohio St. 67,

152 N.E.188 (1926), paragraph two of the syllabus. A continuing objection “in effect

places upon the trial court the responsibility of judging each question asked and of

spontaneously determining if it is objectionable. In effect, it puts the trial court in the

position of being assistant counsel. If there is reason to object to a specific question, the

objection should be made and the reason given.” State v. Jackson, 3rd Dist. Allen No. 1-

85-10, unreported, 1986 WL 9294, *3. For purposes of our review, we find Mother’s

continuing objection inadequate. See also, In re A.R., 9th Dist. Summit No. 22836, 2006-

Ohio-1548, ¶ 7 [review of the record does not support Father’s argument that continuing

objection was sufficient to preserve specific arguments and should have been renewed].

{¶47} The status of Mother’s objection matters to our standard of review. Finding

Mother’s continuous objection to Swindell’s testimony insufficient, we review the issue for
[Cite as In re D.J., 2022-Ohio-4195.]

plain error. See, In re E.L., 8th Dist. Cuyahoga No. 110171, 2021-Ohio-1495, ¶ 28

[“Rather, counsel for Mother raised a continuing objection to the introduction of hearsay

testimony, which was predicated on testimony concerning the contents of the agency's

case file and was unrelated to the results of Mother's drug tests at Cleveland Treatment

Center. Thus, Mother has forfeited her right to raise these issues on appeal absent a

claim of plain error.”] Pursuant to Crim.R. 52(B), “plain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of the

court.” The rule places several limitations on a reviewing court’s determination to correct

an error despite the absence of timely objection at trial: (1) “there must be an error, i.e.,

a deviation from a legal rule,” (2) “the error must be plain,” that is, an error that constitutes

“an ‘obvious’ defect in the trial proceedings,” and (3) the error must have affected

“substantial rights” such that “the trial court’s error must have affected the outcome of the

trial.” State v. Dunn, 5th Dist. No. 2008-CA-00137, 2009-Ohio-1688, citing State v.

Morales, 10 Dist. Nos. 03-AP-318, 03-AP-319, 2004-Ohio-3391, at ¶ 19 (citation omitted).

The decision to correct a plain error is discretionary and should be made “with the utmost

caution, under exceptional circumstances and only to prevent a manifest miscarriage of

justice.” Barnes, supra, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

{¶48} We find no plain error in the admission of any of Swindell’s testimony. Even

the testimony regarding Mother’s custodial suitability was reiterated elsewhere during the

hearing by Parks, the ongoing caseworker, and the GAL. The Agency pursued

permanent custody because Mother demonstrated an inability to understand the

children’s need for constant supervision and enforcing of boundaries. The trial court
[Cite as In re D.J., 2022-Ohio-4195.]

therefore did not commit plain error in permitting Swindell to testify regarding her concerns

about Mother’s parenting.

{¶49} We find no plain error in the trial court’s handling of Swindell’s testimony.

Mother’s first assignment of error is overruled.

II.

{¶50} In her second assignment of error, Mother argues the trial court erred in

granting permanent custody of the children to the Agency because the decision was not

supported by clear and convincing evidence, was against the manifest weight of the

evidence, and was not in the children’s best interests. We disagree.

Standard of Review

{¶51} R.C. 2151.414(B)(1) states permanent custody may be granted to a public

or private agency if the trial court determines by clear and convincing evidence at a

hearing held pursuant to division (A) of R.C. 2151.414, that it is in the best interest of the

child and any of the following apply:

(a) The child is not abandoned or orphaned * * * and the child

cannot be placed with either of the child's parents within a

reasonable time or should not be placed with the child's parents.

(b) The child is abandoned.

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
[Cite as In re D.J., 2022-Ohio-4195.]

agencies for twelve or more months of a consecutive twenty-two-

month period * * *

(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.

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

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

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

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

other person who may significantly affect the child; (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; and (e) whether any of the factors in division (E)(7)

to (11) of R.C. 2151.414 apply in relation to the parents and child.

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

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

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

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

the best interest of the child.

{¶54} If the child is not abandoned or orphaned, the focus turns to whether the

child cannot be placed with either parent within a reasonable period of time or should not
[Cite as In re D.J., 2022-Ohio-4195.]

be placed with the parents. Under R.C. 2151.414(E), the trial court must consider all

relevant evidence before making this determination. The trial court is required to enter

such a finding if it determines, by clear and convincing evidence, that one or more of the

factors enumerated in R.C. 2151.414(E)(1) through (16) exist with respect to each of the

child's parents.

{¶55} The Ohio Supreme Court has defined “clear and convincing evidence” as

“[t]he measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the allegations sought to be established. It is intermediate, being

more than a mere preponderance, but not to the extent of such certainty, as required

beyond a reasonable doubt, as in criminal cases.” Cross v. Ledford, 161 Ohio St. 469,

120 N.E.2d 118 (1954); In re: Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613

(1985). In reviewing whether the trial court based its decision upon clear and convincing

evidence, “a reviewing court will examine the record to determine whether the trier of facts

had sufficient evidence before it to satisfy the requisite degree of proof.” State v. Schiebel,

55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990); see also C.E. Morris Co. v. Foley Constr.

Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978). If the trial court's judgment is “supported

by some competent, credible evidence going to all the essential elements of the case,” a

reviewing court may not reverse that judgment. Schiebel, 55 Ohio St.3d at 74.

{¶56} Moreover, “an appellate court should not substitute its judgment for that of

the trial court when there exists competent and credible evidence supporting the findings

of fact and conclusion of law.” Id. 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
[Cite as In re D.J., 2022-Ohio-4195.]

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 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.” Davis v.

Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re: Christian,

4th Dist. Athens No. 04CA10, 2004-Ohio-3146; In re: C.W., 2nd Dist. Montgomery No.

20140, 2004-Ohio-2040.

Finding pursuant to R.C. 2151.414(B)(1)(d)

{¶57} The trial court determined that pursuant to R.C. 2151.414(B)(1)(d), D.J. and

J.J. were in the temporary custody of the Agency for twelve months of a consecutive

twenty-two-month period. Mother does not dispute this fact. This Court has adopted the

position that proof of temporary custody with an agency for twelve or more months of a

consecutive twenty-two-month period alone is sufficient to award permanent custody.

Matter of O.M., 5th Dist. Coshocton No. 20CA0017, 2021-Ohio-1310, 2021 WL 1424200,

¶ 33 citing In the Matter of A.S., V.S., and Z.S., 5th Dist. Delaware No. 13 CAF 050040,

2013-Ohio-4018. Therefore, a finding that grounds existed for permanent custody cannot

be against the manifest weight of the evidence. Matter of L.G., 5th Dist. Stark No. 2020-

CA-00139, 2021-Ohio-743, ¶ 36.

Best interest of D.J. and J.J.

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

credibility of the witnesses. Our role is to determine whether there is relevant, competent,
[Cite as In re D.J., 2022-Ohio-4195.]

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

Jeffries, 5th Dist. Stark No. CA5758 (Feb. 10, 1982). Accordingly, judgments supported

by some competent, credible evidence going to all the essential elements of the case will

not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v.

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

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

R.C. 2151.414(D)(1) mandates the trial court must consider all relevant factors, including,