[Cite as In re A.M., 2019-Ohio-1578.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
                                               :
                                               :   Hon. John W. Wise, P.J.
                                               :   Hon. Patricia A. Delaney, J.
 IN RE A.M.                                    :   Hon. Earle E. Wise, Jr., J.
                                               :
                                               :   Case Nos. 18-CA-83 & 18-CA-85
                                               :
                                               :
                                               :
                                               :
                                               :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Licking County Court of
                                                   Common Pleas, Juvenile Division Case
                                                   No. F2015-0118



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            April 22, 2019




APPEARANCES:

 For Parents-Appellants:                           For LCDJFS - Appellee:

 TONIA R. WELKER                                   WILLIAM C. HAYES
 22 E. Main Street                                 LICKING COUNTY PROSECUTOR
 P.O. Box 598
 Centerburg, OH 43011                              JEFFREY BOUCHER
                                                   20 S. Second St., 4th Floor
                                                   Newark, OH 43055
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                         2

Delaney, J.

       {¶1} Appellants Mother and Father appeal the August 21, 2018 judgment entry

of the Licking County Court of Common Pleas, Juvenile Division granting permanent

custody of their child to Appellee Licking County Department of Job and Family Services.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} A.M., born on January 14, 2015, is the child of N.M. (“Mother”) and M.M.

(“Father”). Mother and Father are not married.

                                     The Complaint

       {¶3} On March 12, 2015, A.M. was removed from Mother’s home by an ex parte

order of removal and placed in the emergency shelter care custody of Licking County

Department of Job and Family Services (“LCDJFS”). LCDJFS became involved because

Mother left A.M. in the care of someone not in position to care for the child and Mother

and Father could not be located.

       {¶4} An adjudicatory hearing was held on May 26, 2015. Based upon the

agreement of the parties, the evidence presented, and the recommendation of the

Guardian ad Litem, A.M. was found to be a dependent child. A.M. was placed in the

temporary custody of LCDJFS. Father was not present at the hearing because he was

incarcerated in prison due to a felony sex offense.

       {¶5} LCDJFS established a case plan for Mother and Father. The case plan

established two primary goals. First, the parents were to meet A.M.’s basic needs. This

included maintain stable housing, maintain a stable income, complete an approved

parenting program, and write a plan on how A.M. would be supervised in their homes.

The second goal was to address their mental health needs. Mother and Father were
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                          3


required to attend counseling, follow recommendations of psychiatrists, complete drug

screens, stay away from unsafe people, and sign releases. Of paramount concern was

Mother’s and Father’s mental health. Mother was diagnosed with bipolar I disorder,

borderline personality disorder, post-traumatic stress syndrome, anxiety, and depression.

Father was diagnosed with schizophrenia and had multiple suicide attempts.

       {¶6} A.M. was placed in a foster to adopt home in December 2015.

       {¶7} LCDJFS filed a motion for permanent custody on February 3, 2016. A

hearing was held on May 26, 2016. The trial court denied the motion and temporary

custody was extended until September 12, 2016.

       {¶8} On August 11, 2016, LCDJFS filed a second motion for permanent custody.

At the hearing on October 6, 2016, the parties agreed to continue the permanent custody

hearing to January 6, 2017.

       {¶9} LCDJFS filed a motion for second extension of temporary custody. In an

agreed judgment entry on January 5, 2017, temporary custody was extended to March

12, 2017.

       {¶10} On February 9, 2017, LCDJFS filed a third motion for permanent custody.

A hearing was scheduled for April 25, 2017, which was continued to August 1, 2017. The

hearing was continued again to October 10, 2017.

       {¶11} Foster parents filed a motion for legal custody on July 5, 2017.

       {¶12} The hearing on the motion for permanent custody was held on October 10,

2017, October 11, 2017, and December 19, 2017. The following evidence was adduced

at the hearings.
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                            4


                                         Mother

       {¶13} At the beginning of the case, Mother did not have permanent housing.

Through the Muskingum County Children Services, Mother was able to obtain Section 8

housing in August 2016. Mother lived in the apartment with her son, born March 2017.

There were no concerns for Mother’s care of her son.

       {¶14} T.C. is Mother’s boyfriend and father of Mother’s son. T.C. has a 2014

conviction for domestic violence, a fifth-degree felony, and a 2015 conviction for domestic

violence, a fourth-degree felony. T.C. was released from prison in March 2016. Mother

denied living with T.C. but by November 2017, T.C.’s name was on the apartment lease.

       {¶15} Mother struggled to maintain stable employment during the entirety of the

proceedings. The longest Mother stayed at a position was four months, leaving when her

hours were cut. At the time of the hearing in October, Mother was working at a fast-food

restaurant. In December 2017, she was training for a position with Spectrum cable.

       {¶16} Mother was diagnosed with bipolar I disorder, borderline personality

disorder, post-traumatic stress syndrome, anxiety, and depression. Mother was receiving

mental health treatment from Allwell Behavioral Health in Muskingum County starting in

April 2016. Allwell provided Mother with a therapist, case manager, and psychiatrist.

Mother received therapy and medication to treat her mental health disorders. The Allwell

case manager assisted Mother with budgeting and other life planning issues. Catherine

Weber, case manager with LCDJFS assigned to A.M., expressed concerns with Mother’s

commitment to mental health services. Mother’s case managers with LCDJFS observed

that Mother had difficulty maintaining consistency is all areas of her life. When Mother

was steady with her mental health treatment, other aspects of her life suffered. When
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                              5


Mother was employed, she did not maintain her mental health treatment or visitation with

A.M. After the October 2017 hearings, Mother recommitted to her mental health

treatment. Mother contended that she completed her case plan requirements in January

2017. Weber testified there was a difference between marking the services off the case

plan versus benefiting and changing behaviors and lifestyle as a result of the services.

       {¶17} Since the beginning of the case, Mother had two-hour, once-a-week,

supervised visitation with A.M. In the first year, Mother missed 25% of the visits. LCDJFS

did not move Mother from supervised visitation due to Mother’s inconsistent visitation.

Mother’s failure to attend visitations was often due to transportation issues. Weber

testified A.M. was not bonded with Mother. The staff observed that half-way through the

visits, A.M. would pack her backpack and stand by the door, ready to leave. After her son

was born, Mother struggled to balance the visit with two children. T.C. attended a few

visitations but he did not participate in the visitation.

       {¶18} Mother rarely communicated with the foster parents regarding A.M.

                                            Father

       {¶19} Father had not had any contact with A.M. since March 2016 pursuant to the

trial court’s order to suspend visitation. Weber testified Father had been diagnosed with

schizophrenia and had attempted suicide. Father experienced intermittent homelessness.

After his hospitalization, Father lived with his parents. By the December 2017 hearing,

Father had moved into an apartment.

       {¶20} LCDJFS considered Father’s parents for relative placement of A.M. but

determined it would not be appropriate. Father’s parents lived in a two-bedroom home.

Father was living with his parents at the time and there wasn’t physical room for A.M.
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                          6


      {¶21} Throughout the proceedings, Father did not argue he should be given

custody of A.M. Father supported Mother’s position that the motion for permanent custody

should be denied and A.M. placed in Mother’s custody.

                                          A.M.

      {¶22} A.M. has been placed with her foster to adopt family since December 2015.

The foster family has two parents, three adopted children, and another foster infant. The

foster mother works at home.

      {¶23} A.M. is bonded with her foster parents and calls them “Mommy” and

“Daddy.” Foster mother communicates with the parents of the children that are placed in

her care, but she has rarely communicated with Mother.

      {¶24} A.M. does not have any special needs, either health or learning.

                                  Guardian ad Litem

      {¶25} The original Guardian ad Litem assigned to the case withdrew from the case

in October 2016 due to health reasons. A new GAL was appointed.

      {¶26} Foster mother testified the new GAL met with A.M. and the foster family

twice since October 2016. The visits were approximately 15 minutes long.

      {¶27} Weber testified the GAL would not work or communicate with her.

      {¶28} The GAL recommended A.M. should be placed with Mother.

                                Magistrate’s Decision

      {¶29} The magistrate issued his decision on March 29, 2018. The magistrate

found LCDJFS made reasonable efforts to achieve reunification and to find a permanent

placement for A.M., but the clear and convincing evidence showed Mother and Father

were incapable of meeting A.M.’s needs. The magistrate considered the GAL’s
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                            7


recommendation but found it was not in the best interests of A.M. to be placed with

parents. The magistrate recommended permanent custody of A.M. be awarded to

LCDJFS.

       {¶30} Mother filed objections to the magistrate’s decision on April 12, 2018. Father

filed a motion supporting Mother’s objections.

       {¶31} On August 21, 2018, the trial court overruled the objections and approved

the magistrate’s decision.

       {¶32} It is from this judgment entry Mother and Father now appeal.

                               ASSIGNMENTS OF ERROR

       {¶33} Mother and Father raise two Assignments of Error:

       {¶34} “I. THE TRIAL COURT ERRED BY GRANTING THE STATE’S MOTION

FOR PERMANENT CUSTODY AS THE FINDING WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE. MOTHER WAS COMPLIANT WITH HER CASE PLAN,

THERE WAS RELATIVE PLACEMENT AVAILABLE, AND A LEGAL CUSTODY

MOTION PENDING, ALL OF WHICH WERE LEGALLY SECURE PLACEMENTS THAT

COULD HAVE BEEN ACHIEVED WITHOUT A GRANT OF PERMANENT CUSTODY

TO THE AGENCY.

       {¶35} “II. THE TRIAL COURT ERRED BY FAILING TO CONSIDER THE CHILD’S

WISHES     THROUGH           THE   GUARDIAN      AD    LITEM    PURSUANT        TO    R.C.

2151.414(D)(1)(B) AND DID NOT MAKE A FINDING THAT THE CHILD WAS TOO

IMMATURE TO EXPRESS HER WISHES.”
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                              8


                                        ANALYSIS

                                             I.

       {¶36} In their first Assignment of Error, Mother and Father contend the trial court

erred in granting permanent custody of A.M. to LCDJFS. We disagree.

       {¶37} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405

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

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

evidence is that evidence “which will provide in the mind of the trier of facts a firm belief

or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St.

469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue

must be clear and convincing, a reviewing court will examine the record to determine

whether the trier of facts had sufficient evidence before it to satisfy the requisite degree

of proof.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all

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

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

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

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

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

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

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

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

Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                             9


       {¶39} R.C. 2151.414 sets forth the guidelines a trial court must follow when

deciding a motion for permanent custody. R.C. 2151.414(A)(1) mandates the trial court

schedule a hearing and provide notice upon the filing of a motion for permanent custody

of a child by a public children services agency.

       {¶40} Pursuant to R.C. 2151.414(B)(1), the trial court may grant permanent

custody of a child to a movant if the court determines at the hearing, by clear and

convincing evidence, that it is in the best interest of the child to grant permanent custody

of the child to the agency that filed the motion for permanent custody and that any of the

following apply:

       (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.
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                          10


       (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. * * * *.

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

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

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

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

the best interest of the child.

       {¶42} Mother and Father both acknowledge in their appellate briefs that A.M. has

been in the temporary custody of LCDJFS for 12 or more months of a consecutive 22-

month period. R.C. 2151.414(B)(1)(d). The adjudicatory hearing was held on May 26,

2015 and A.M. was placed in the temporary custody of LCDJFS. For various reasons, the

parties agreed to extend LCDJFS’s temporary custody. The motion for permanent

custody was filed on February 9, 2017 and heard in October 2017. The magistrate’s
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                           11


decision was filed on March 29, 2018. As of the date of the magistrate’s decision, A.M.

had been in the temporary custody of LCDJFS for 34 months.

       {¶43} The trial court also determined that pursuant to R.C. 2151.414(B)(1)(a) A.M.

could not be placed with Mother or Father within a reasonable time or should not be

placed with parents. Mother contends, and Father supports her argument, that the trial

court’s finding was against the manifest weight of the evidence and A.M. should be placed

with Mother.

       {¶44} Mother argues she met her case plan requirements in obtaining stable

housing, stable income, completed a parenting program, and received mental health

treatment. We agree the facts show Mother complied with her case plan requirements

over a three-year period, but the facts demonstrated Mother was not consistent in

independently applying the knowledge gained from her case plan services during those

three years in order to reunify with A.M. Mother’s caseworkers testified Mother’s real-life

application of her case plan was sporadic. Mother was unable to maintain any one job for

very long. She missed multiple visitations with A.M. Mother’s boyfriend had two felony

convictions for domestic violence. Mother struggled to balance the important elements of

her life, working and her mental health.

       {¶45} Mother states the trial court could have considered other placement

arrangements rather than permanent custody to LCDJFS. First, Mother states the trial

court did not consider relative placement. Evidence was presented that LCDJFS

completed a home study with Father’s parents, the only viable relative placement option

for A.M. Weber testified that Father’s parents’ home was not an option because it was a

two-bedroom home and Father was living in the home. Father was barred by court order
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                             12


from visiting A.M. Second, Mother states the trial court did not consider the foster parents’

motion for legal custody. Foster mother testified they filed a motion for legal custody as a

“safety net” for A.M. They felt adoption was the best option for A.M. because legal custody

did not offer A.M. stability due to continued visitation.

       {¶46} Pursuant to R.C. 2151.414(D)(1), in determining the best interest of a child

in a permanent custody proceeding, the court shall 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

       * * * 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. * * * *.

       {¶47} The magistrate found it was in the best interest of A.M. to terminate all

parental rights and place A.M. in the permanent custody of LCDJFS. The most significant
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                                13


best interest factor to the trial court was that A.M. has been in the temporary custody of

LCDJFS for approximately three years while Mother and Father tried to complete their

case plan goals. The evidence demonstrated A.M. was not bonded with Mother or Father.

A.M. was bonded with her foster family.

       {¶48} The GAL recommended A.M. be returned to the custody of Mother. The

magistrate rejected the GAL’s recommendation because it was not in accordance with

the best interest factors or supported by the evidence. The trial court is not required to

follow a GAL’s recommendation; it has discretion to follow or reject it. Pasco v. Pasco,

5th Dist. Delaware No. 2018 CAF 06 0047, 2019-Ohio-1099, citing Clyburn v. Gregg, 4th

Dist. Ross No. 11CA3211, 2011–Ohio–5239, ¶ 47; Hammons v. Hammons, 5th Dist.

Delaware No. 13 CAF 07 0053, 2014–Ohio–221, ¶ 12.

       {¶49} After three years, A.M. needs legally secure placement. We find no error for

the trial court to find it was in the best interest of A.M. to terminate all parental rights and

to place the child in the permanent custody of LCDJFS.

       {¶50} The first Assignment of Error is overruled.

                                              II.

       {¶51} In their second Assignment of Error, Mother and Father contend the trial

court did not consider the child’s wishes as expressed through the GAL pursuant to R.C.

2151.414(D)(1)(b).

       {¶52} The GAL believed Mother had done everything asked of her and should be

reunited with A.M. The evidence in this case showed the GAL had limited communication

with the LCDJFS caseworkers and the foster family caring for A.M. The GAL observed

A.M. during Mother’s visitation. Halfway through the visitations, multiple witnesses
Licking County, Case Nos. 18-CA-83 & 18-CA-85                                            14


testified A.M. would pack her belongings and stand at the door, ready to leave. The GAL

did not discuss the case with A.M. due to her young age.

       {¶53} We find no abuse of discretion for the trial court to find the evidence did not

support the GAL’s recommendation. It was in the best interest of A.M. to be placed in the

permanent custody of LCDJFS.

       {¶54} The second Assignment of Error is overruled.

                                     CONCLUSION

       {¶55} The judgment of the Licking County Court of Common Pleas, Juvenile

Division is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Wise, Earle, J., concur.
