[Cite as In re A.S., 2012-Ohio-3197.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY



IN THE MATTER OF:

        A.S.                                                 CASE NO. 1-12-01

ADJUDICATED DEPENDENT CHILD,
                                                             OPINION
[JENNIFER ALEXANDER -
     APPELLANT].


IN THE MATTER OF:

        M.M.                                                 CASE NO. 1-12-02

ADJUDICATED DEPENDENT CHILD,
                                                             OPINION
[JENNIFER ALEXANDER -
     APPELLANT].



                  Appeals from Allen County Common Pleas Court
                                 Juvenile Division
                  Trial Court Nos. 2010JG27309 and 2010JG27310

                                        Judgments Affirmed

                              Date of Decision: July 16, 2012
Case Nos. 1-12-01 and 1-12-032




APPEARANCES:

       Sarah N. Newland for Appellant/Mother

       Mariah M. Cunningham for Appellee, Allen Co. Children’s Services

       Keith Schierloh for Appellee/Father

       Marie A. Von der Embse for Appellees/Minor Children



SHAW, P.J.

       {¶1} Mother-appellant    Jennifer   Alexander    (“Jennifer”)   appeals   the

December 20, 2011 judgment of the Allen County Court of Common Pleas,

Juvenile Division, awarding permanent custody of her two minor children, A.S.

and M.M., to the Allen County Children’s Services Board (hereinafter “ACCSB”

or “the agency”).

       {¶2} The facts relevant to this appeal are as follows. Jennifer is the mother

of A.S., born August, 2008, and M.M., born October, 2009. David Thompson was

determined to be the father of the two children.

       {¶3} On January 17, 2010 an incident occurred wherein M.M., not yet three

months old, was in a baby swing crying. Jennifer kicked the baby swing holding

M.M., nearly toppling the swing, and Jennifer threatened to shake M.M.

Jennifer’s sister Stacy attempted to intervene to protect M.M. and when Stacy did


                                        -2-
Case Nos. 1-12-01 and 1-12-032


intervene, Jennifer assaulted Stacy and threatened to kill her. Jennifer’s other

child A.S., who was one year old, was present at the time of the incident. As a

result of the incident, the police were called and Jennifer was arrested for domestic

violence.

        {¶4} Following the incident, on January 29, 2010, Allen County Children

Services Board filed two complaints. The first complaint alleged that A.S. was a

dependent child and the second complaint alleged that M.M. was a dependent and

neglected child. (Doc. 2, 2).1

        {¶5} On February 2, 2010, in order to protect the best interests of the

children, Marie Von der Embse was appointed as Guardian Ad Litem (“GAL”) for

the two children. (Doc. 7, 8).

        {¶6} On February 3, 2010, a “shelter care” hearing was held. Despite being

notified of the hearing, Jennifer did not attend. From the testimony presented at

the hearing the magistrate found that Jennifer refused to cooperate with the

ACCSB caseworker and at times would not even talk to her. (Docs. 13, 15).

Further, the magistrate found that Jennifer refused to approve a safety plan

proposed by the agency and that Jennifer missed a meeting at the agency. (Id.)

On February 4, 2010, pursuant to the magistrate’s order, both A.S. and M.M. were

placed in the shelter care of ACCSB. (Id.) A.S. and M.M. were subsequently

1
  The first document number in the series cited here and afterward throughout this opinion corresponds to
the case file pertaining to A.S. and the second document number corresponds to the case file pertaining to
M.M.

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Case Nos. 1-12-01 and 1-12-032


placed in the foster home of Danielle Kohler (“Kohler”), where the children have

since remained.

          {¶7} On February 26, 2010, a case plan was filed. (Doc. 18, 22). As part

of the case plan Jennifer was required to complete a mental health assessment and

follow recommendations, complete agency approved parenting classes, complete

random urine screens, provide for the children’s basic needs, complete an

assessment for anger management services, have no unsupervised contact with her

daughters, have no further incidents of domestic violence, and work with Help Me

Grow services. (Id.)

          {¶8} On March 10, 2010 a hearing was held on the agency’s complaints to

determine whether A.S. was dependent and to determine whether M.M. was

dependent and neglected. Despite being notified of the hearing, Jennifer did not

attend.     At the hearing, testimony was provided by investigative caseworker

Sharon Fenton of ACCSB and Officer Trent Kunkleman who was the responding

officer for the domestic violence incident wherein Jennifer kicked the baby swing

holding M.M.

          {¶9} On March 12, 2010, the magistrate’s decisions were issued finding

both A.S. and M.M. dependent pursuant to R.C. 2151.04. (Docs. 23, 24) M.M.

was not found neglected. (Id.)




                                         -4-
Case Nos. 1-12-01 and 1-12-032


       {¶10} On April 16, 2010, the trial court adopted the findings of fact and

conclusions of law contained in the magistrate’s decisions finding that A.S. and

M.M. were dependent children. (Docs. 27, 31). Further, the trial court found that

there was reasonable cause for issuance of the shelter care order previously filed,

and that reasonable efforts had been made by ACCSB to “eliminate continued

removal of the minor child[ren] from the home.” (Id.)

       {¶11} On April 26, 2010 the trial court adopted the findings of the

magistrate placing the children in the temporary custody of ACCSB and the

February 26, 2010 case plan was made the order of the court. (Docs. 38, 30).

       {¶12} On December 28, 2010, ACCSB filed motions to extend temporary

custody of A.S. and M.M. (Docs. 30, 34). On March 14, 2011, a hearing was held

on the motion to extend temporary custody. On March 16, 2011, the magistrate

issued a decision extending temporary custody. (Docs. 40, 45). In that decision,

the magistrate found that Jennifer was released from incarceration in Marysville in

October of 2010, that Jennifer had failed to take all required random urine screens,

and that Jennifer was not visiting the children consistently.      (Id.)   Therefore

temporary custody was extended “because the mother was incarcerated and needs

additional time to complete case plan services.” (Id.) On May 25, 2011, the

magistrate’s decision was adopted by the trial court, extending temporary custody

for an additional six month period. (Docs. 41, 47).


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Case Nos. 1-12-01 and 1-12-032


       {¶13} On June 22, 2011, ACCSB filed motions requesting permanent

custody for A.S. and M.M. (Docs. 43, 49).

       {¶14} On November 29, 2011, Jennifer filed motions for legal custody of

A.S. and M.M. On December 6, 2011, Jennifer filed amended motions for legal

custody, requesting legal custody or, in the alternative, temporary custody of A.S.

and M.M.

       {¶15} On December 1, 2011, the GAL filed a report and recommendation

regarding A.S. and M.M., recommending that ACCSB be granted permanent

custody of both of the children. (Docs. 76, 76).

       {¶16} On December 7, 2011, the hearing on ACCSB’s permanent custody

motion and Jennifer’s custody motions was held. At the hearing ACCSB first

called Judy Lester, a SAFY Behavioral Services therapist. Lester testified that

A.S. has a “sensory integration disorder” which causes abnormal melt downs and

that A.S. “has difficulties with sensory information coming into her brain.” (Tr. at

6). Lester testified that A.S. would need special care and because of this, Lester

testified, A.S. needs an adult to be well regulated. (Tr. at 10, 14).

       {¶17} Next, Danielle Kohler, the foster mother, testified that she had been a

licensed foster parent for 6 years, that she had taken care of A.S. and M.M. for

roughly 22 months, and that she desired to adopt the two children. (Tr. at 30, 54-

55). Kohler testified to the difficulties in dealing with A.S.’s sensory disorder,


                                          -6-
Case Nos. 1-12-01 and 1-12-032


stating that A.S. has to see multiple doctors and that A.S. needs a structured

environment. (Tr. at 33-35). Kohler testified that she carries a binder with her at

all times to help her deal with A.S.’s disorder. (Tr. at 33). Kohler further testified

to a typical day involving A.S., which includes listening therapy, and brushing

therapy2, and on some days, trips to the occupational therapist in Toledo. (Tr. at

38-40). Kohler testified that she had talked about these things with Jennifer and

had showed Jennifer the “brushing” technique, but Kohler said she was “not sure

that [Jennifer] understood.” (Tr. at 43). Kohler further testified that she sees

similar problems to A.S. developing in M.M., though M.M. has not been

diagnosed with a sensory disorder. (Tr. at 44-45).

        {¶18} Kohler testified that A.S. and M.M. were integrated into her home

and that they were effectively “siblings” with the other children. (Tr. at 52).

Finally, Kohler testified to one incident where Jennifer cancelled an agency visit

and Jennifer said to Kohler via text message that “she couldn’t do it anymore.”

(Tr. at 47).

        {¶19} Amber Martin, the caseworker from ACCSB, testified at the hearing

that although Jennifer had complied with some parts of the case plan, she had not

fulfilled it. Martin testified that Jennifer was required to complete a mental health

assessment and comply with any recommendations from that assessment. (Tr. at

2
  According to Kohler, brushing therapy is done on A.S. every two hours and encompasses using a
“surgical brush” to “brush her arms, legs, her back in the specific order, and specific way. And then you do
joint compressions on her hips, knees, ankles, shoulders, elbows and wrists.” (Tr. at 36).

                                                    -7-
Case Nos. 1-12-01 and 1-12-032


71).     Martin testified that Jennifer completed the assessment and it was

recommended that Jennifer undertake Moral Recognition Therapy, which Jennifer

completed. However, Martin expressed concerns that after going through the

class, Jennifer was arrested for, and convicted of, theft from her employer Little

Caesars.

        {¶20} Martin testified that Jennifer completed some of the urine screens she

was required to take, though Jennifer only took 8 of the 21 screens, passing those

that she took. (Tr. at 73). Martin testified that for the majority of the tests Jennifer

failed to take, Jennifer gave no reasons why she did not take them, but when

Jennifer did give reasons she said that she had “lost the mail, the piece of paper.

She didn’t have transportation and forgot.” (Tr. at 75).

        {¶21} Martin further testified that during the pendency of these proceedings

Jennifer was incarcerated twice, the first time being from February 2010 until

October 2010, and the second time being from October 2011 until November of

2011.3 (Tr. at 76).

        {¶22} Martin then testified that there were concerns with Jennifer being

able to provide for the basic needs of the children. (Tr. at 78). These concerns

included the fact that Jennifer had not maintained a residence, moving nine times


3
  Martin testified that she believed the first incarceration was due to a parole violation based on the
domestic violence incident. Cross examination by Jennifer’s attorney seems to imply that Jennifer was
convicted of Persistent Disorderly Conduct out of the earlier incident of domestic violence. According to
Martin, the second period of incarceration resulted from Jennifer’s theft from Little Caesars.

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Case Nos. 1-12-01 and 1-12-032


throughout these proceedings.4                 Martin testified that shortly before the final

hearing, Jennifer had taken Martin to an apartment Jennifer claimed she would be

renting, but the apartment was empty and no lease had been signed up to the time

of the hearing. (Tr. at 83). Martin also testified that Jennifer’s current boyfriend

and the father to her unborn child, Todd Wilson, was planning to live with her at

the new residence. (Tr. at 145). Martin testified that the agency had received

reports of domestic violence between Todd Wilson and Jennifer. (Id.)

         {¶23} Martin testified that Jennifer did not show the ability to meet her own

financial needs as she had only been employed for about three weeks at Little

Caesars since April of 2010. Martin also testified that Jennifer exercised her

supervised visitation times inconsistently in “spurts.” (Tr. at 89). According to

Martin, Jennifer was late or missed twenty-six visits with the children in a fourteen

month period. (Id. at 90). Martin testified that Jennifer’s reasons for missing or

being late included, “[s]lept in, sick has been several times, one time she was

having her taxes done, a train one time made her late.” (Tr. at 90). Martin

testified that after a period of weeks where Jennifer missed visitation, A.S. was

hesitant to go back and she “saw an increase of behaviors [of A.S.] into visitation,

pulling out hair, biting, acting out after visits.” (Tr. at 91).



4
  Some of these moves were back and forth to various correctional institutions and back and forth to her
father’s home. Martin testified that in one apartment that Jennifer resided in, her electric was turned off for
failure to pay the bill. (Tr. at 85).

                                                     -9-
Case Nos. 1-12-01 and 1-12-032


       {¶24} In conclusion, Martin testified that she did not believe A.S. or M.M.

could be placed with Jennifer within a reasonable time, stating “[a]t this time,

[Jennifer] still does not have a home, a lease, income is still unknown, there is not

a regular income. There is still some inconsistency with visitation and [A.S.]’s

needs level has increased * * *[.]” (Tr. at 103). ACCSB then rested its case.

       {¶25} Jennifer then testified at the hearing, arguing that she should get legal

custody of A.S. and M.M., or in the alternative, temporary custody of the two

children. Jennifer testified that she had verbally agreed to rent an apartment but

had not signed a lease yet. (Tr. at 148). Jennifer also testified that she was

attempting to get financial assistance through the State. (Tr. at 150). Jennifer

testified that she was pregnant by her boyfriend Todd and looking for a job. (Tr.

at 172). Jennifer also testified that her boyfriend Todd had been convicted of two

counts of Drug Trafficking, and Jennifer testified she was aware that Todd had

been convicted of two counts of domestic violence. (Tr. at 174).

       {¶26} After Jennifer testified, David Thompson, the father of the two

children testified. Thompson testified he had only seen A.S. once and had never

seen M.M. According to the GAL report, Thompson had 10 kids and did not want

to, or have the means to, take custody of the two children.




                                        -10-
Case Nos. 1-12-01 and 1-12-032


      {¶27} Following Thompson’s testimony, the GAL made a statement in

closing arguing for permanent custody to be awarded to ACCSB. After closing

arguments, the case was submitted for the court’s decision.

      {¶28} On December 20, 2011, two judgment entries were filed awarding

permanent custody to ACCSB for both A.S. and M.M.              The court found in

separate judgment entries for each child that each child could not be placed with

either parent within a reasonable period of time and that the children had been in

the temporary custody of ACCSB for twelve or more months of a consecutive

twenty-two month period. (Docs. 81, 79). The court found that the children were

in need of legally secure permanent placement and that they had been fully

integrated into the Kohler foster home. (Id.) The court found upon consideration

of the factors enumerated in R.C. 2141.414 that an award of permanent custody to

ACCSB was in the children’s best interests. (Id.)

      {¶29} It is from the December 21, 2011 judgment entries that Jennifer

appeals, asserting the following assignments of error for our review.


                      ASSIGNMENT OF ERROR 1
      THE TRIAL COURT ERRED IN FINDING THAT THE
      MINOR CHILDREN COULD NOT BE RETURNED TO
      MOTHER WITHIN A REASONABLE TIME PURSUANT TO
      R.C. 2151.414(E).

                  ASSIGNMENT OF ERROR 2
      THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN
      THE CHILDREN’S BEST INTEREST TO TERMINATE THE

                                       -11-
Case Nos. 1-12-01 and 1-12-032


       MOTHER’S PARENTAL RIGHTS AND PLACE THE
       CHILDREN IN THE PERMANENT CUSTODY OF THE
       ALLEN COUNTY CHILDREN SERVICES BOARD.

                    ASSIGNMENT OF ERROR 3
       THE TRIAL COURT ERRED IN FINDING THE MINOR
       CHILDREN DEPENDENT AS DEFINED IN R.C. 2151.04(B)
       AS THIS WAS NOT ALLEGED IN THE COMPLAINT FILED
       BY THE ALLEN COUNTY CHILDREN SERVICES BOARD.

                             First Assignment of Error

       {¶30} In Jennifer’s first assignment of error, she argues that the trial court

erred in finding that the children could not be returned to Jennifer within a

reasonable time.   Specifically Jennifer claims, inter alia, that she was in the

process of acquiring an apartment and securing funds to support A.S. and M.M.

       {¶31} As an initial matter, we note that “[i]t is well recognized that the

right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Franklin, 3d

Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841, ¶ 9, citing In re Hayes, 79 Ohio

St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent “must be

afforded every procedural and substantive protection the law allows.” In re Hayes,

supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991) Thus, it is with

these constructs in mind that we proceed to determine whether the trial court erred

in granting permanent custody of the children to the agency.

       {¶32} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that

a trial court


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Case Nos. 1-12-01 and 1-12-032


      may grant permanent custody of a child to a movant if the court
      determines at the hearing held pursuant to division (A) of this
      section, 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, * * * 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 * * * the child was previously in
      the temporary custody of an equivalent agency in another state.

R.C. 2151.414(B)(1)(a-d).

      {¶33} The Supreme Court of Ohio has held that “[c]lear and convincing

evidence is that measure or degree of proof which will produce in the mind of the

trier of facts a firm belief or conviction as to the allegations sought to be

established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is

intermediate; being more than a mere preponderance, but not to the extent of such


                                      -13-
Case Nos. 1-12-01 and 1-12-032


certainty as is required beyond a reasonable doubt as in criminal cases. It does not

mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256

(1915). In addition, when “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.” Cross, supra (citations omitted); see, also, In re Adoption of

Holcomb, 18 Ohio St.3d 361, 368 (1985).

         {¶34} At the outset, we note that Jennifer does not dispute the finding of

the trial court that the children have been in the agency’s temporary custody in

excess of the required twelve or more months in a consecutive twenty-two-month

period, which would satisfy R.C. 2151.414(B)(1)(d).5                           Pursuant to the plain

language of R.C. 2151.414(B)(1)(d), when a child has been in an agency’s

temporary custody for twelve or more months of a consecutive twenty-two month

period, a trial court need not find that the child cannot or should not be placed with

either parent within a reasonable time. See R.C. 2151.414(B)(1)(d). Therefore,

the court was not required to go into a “reasonable time” analysis as alleged in

Jennifer’s appeal as R.C. 2951.414(B)(1)(d) was satisfied.

         {¶35} However, the court made the additional finding that the children

could not be placed with either parent within a reasonable time or should not be


5
  Jennifer’s brief, in the “Statement of Facts” specifically reads “[t]he minor children resided with the same
foster family for approximately twenty-two months.” (Appt. Br. at 3).

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Case Nos. 1-12-01 and 1-12-032


placed with either parent. R.C. 2151.414(B)(1)(a). The assignment of error raised

is related to this additional finding by the trial court, therefore, in the interest of

justice we will address the argument made regarding the adequacy of that specific

finding.

       {¶36} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a)

that the children cannot be placed with either parent within a reasonable time or

should not be placed with either parent, the Revised Code states:

       (E) In determining at a hearing held pursuant to division (A) of
       this section * * * whether a child cannot be placed with either
       parent within a reasonable period of time or should not be
       placed with the parents, the court shall consider all relevant
       evidence. If the court determines, by clear and convincing
       evidence, at a hearing held pursuant to division (A) of this
       section * * * that one or more of the following exist as to each of
       the child's parents, the court shall enter a finding that the child
       cannot be placed with either parent within a reasonable time or
       should not be placed with either parent:

       (1) Following the placement of the child outside the child's
       home and notwithstanding reasonable case planning and diligent
       efforts by the agency to assist the parents to remedy the
       problems that initially caused the child to be placed outside the
       home, the parent has failed continuously and repeatedly to
       substantially remedy the conditions causing the child to be
       placed outside the child's home. In determining whether the
       parents have substantially remedied those conditions, the court
       shall consider parental utilization of medical, psychiatric,
       psychological, and other social and rehabilitative services and
       material resources that were made available to the parents for
       the purpose of changing parental conduct to allow them to
       resume and maintain parental duties.

       ***

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Case Nos. 1-12-01 and 1-12-032



      (4) The parent has demonstrated a lack of commitment toward
      the child by failing to regularly support, visit, or communicate
      with the child when able to do so, or by other actions showing an
      unwillingness to provide an adequate permanent home for the
      child;

      ***

      (10) The parent has abandoned the child.

      ***

      (14) The parent for any reason is unwilling to provide food,
      clothing, shelter, and other basic necessities for the child or to
      prevent the child from suffering physical, emotional, or sexual
      abuse or physical, emotional, or mental neglect.

(Emphasis Added.) R.C. 2151.414(E)(1, 4, 10, 14).

      {¶37} In addressing the factors in R.C. 2151.414(E), the trial court held the

following in both judgment entries related to A.S. and M.M.:

      [T]he child cannot be placed with either parent within a
      reasonable period of time and should not be placed with the
      parents. Further, the court finds that following the placement of
      the child outside the child’s home and notwithstanding
      reasonable case planning and diligent efforts by the agency to
      assist the parents to remedy the problems that initially caused
      the child to be placed outside the home, both parents failed
      continuously and repeatedly to substantially remedy the
      conditions causing the child to be placed outside the child’s
      home (O.R.C. 2151.414(E)(1)). Further, the mother and father
      have both demonstrated a lack of commitment toward the child
      by failing to regularly support, visit, or communicate with the
      child when able to do so and by their other actions showing an
      unwillingness to provide an adequate, permanent home for the
      child (O.R.C. 2151.414(E)(4)).        Further, the father has
      abandoned the child. (O.R.C. 2151.414(E)(10). Both the mother

                                      -16-
Case Nos. 1-12-01 and 1-12-032


       and the father have been unwilling to provide food, clothing,
       shelter and other basic necessities for the child. (O.R.C.
       2151.414(E)(14)).

(Doc. No. 81, 79).

       {¶38} Jennifer challenges these findings of the trial court, arguing that she

had complied with parts of the case plan by taking recommended classes and

taking some drug screens. Jennifer also argues that she had applied for assistance

from Job and Family Services and would be receiving $435.00 a month in cash

assistance and $200.00 a month in food stamps. Further, Jennifer argues she was

in the process of getting an apartment.

       {¶39} While it is true that Jennifer did follow through with some of the case

plan, the evidence would support the trial court’s finding that she had not

“substantially” remedied the problems that led to the children’s removal. The only

job Jennifer had during the pendency of these matters was a three-week stint at

Little Caesars from which she was apparently fired after stealing from the store.

Moreover, Jennifer’s arguments regarding the apartment and the cash assistance

are completely speculative. Jennifer had ample time prior to the final hearing to

get a job and/or cash assistance and secure a place to live. However, Jennifer was

only in the process of doing these things with no proof at the hearing that she

would be getting cash assistance to provide for the kids or that she had signed a

lease for the apartment.


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Case Nos. 1-12-01 and 1-12-032


       {¶40} Furthermore, Jennifer planned on moving in with the father of her

unborn child, Todd Wilson, who had two prior domestic violence convictions and

had also been convicted of drug trafficking. Finally, Jennifer only took 8 of 21

drug screens, and was late to or missed entirely, 26 visits with her children.

Throughout the time since A.S. and M.M. had been taken from Jennifer, Jennifer

had been in and out of incarceration and she did not attend many of the hearings in

this case despite being notified.

       {¶41} Although Jennifer claims that the children could be returned to her

within a reasonable time, she has produced no concrete evidence of her ability to

support the children, relying instead on speculative money and claims that

Jennifer’s father and/or boyfriend would assist her. Based on the record, we find

that there was clear and convincing evidence to support the finding of the trial

court. Accordingly, Jennifer’s first assignment of error is overruled.

                            Second Assignment of Error

       {¶42} In Jennifer’s second assignment of error, she argues that the trial

court erred in finding that it was in the children’s best interests that permanent

custody was awarded to ACCSB.          Specifically, Jennifer argues that the trial

court’s finding that the children would be returning to a “virtual stranger” if they

were returned to their mother was improper.




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Case Nos. 1-12-01 and 1-12-032


       {¶43} When determining whether granting permanent custody to the

agency is in the best interest of the child, the court must consider all of the

relevant factors listed in R.C. 2151.414(D)(1), including:

       (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.

       {¶44} After considering the factors in R.C. 2151.414(D), the trial court

found that “an award of permanent custody to the Allen County Children Services

Board [was] in the child[ren]’s best interest. (Docs. 81, 79).

       {¶45} In regards to factor (a), at the final hearing, testimony presented

established that Jennifer was late to or missed 26 appointments with her children.

(Tr. at 90). Testimony also established that the inconsistency furthered difficulties

with A.S.’s behaviors and disorder. (Tr. at 11, 91). Evidence was presented at the

                                        -19-
Case Nos. 1-12-01 and 1-12-032


hearing that A.S. and M.M. were fully integrated into the foster caregivers’ family,

in which both children had resided together for the majority of their lives. (Tr. at

52-54, 105-106). Testimony established that the children had been with the foster

family for 22 months, the majority of the children’s lives.

       {¶46} In regards to factor (b), the children’s wishes were expressed through

the GAL.     The GAL visited with the children and spoke to several family

members. Based on her investigation, the GAL determined that the best interests

of A.S. and M.M. would be served by granting permanent custody to ACCSB.

       {¶47} In regards to factor (c), as stated above, A.S. and M.M. had been in

ACCSB’s custody for more than twelve months of a twenty-two month

consecutive period at the time ACCSB filed the motions requesting permanent

custody.

       {¶48} In regards to factor (d), Jennifer had been in and out of jail, had

moved nine times, had no job, had no income, had no place of residence and was

preparing to move in with a man with a substantial criminal record. Jennifer did

not provide any documentation that could support her ability to provide for the

children. On the contrary, the children’s foster mother, Danielle Kohler, had

expressed interest in adopting both A.S. and M.M.




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Case Nos. 1-12-01 and 1-12-032


        {¶49} In regards to factor (e), none of those factors are applicable to this

situation.6

        {¶50} Based on the foregoing we find that there was clear and convincing

evidence to support the decision made by the trial court that it was in the

children’s best interest for permanent custody to be awarded to ACCSB.

Accordingly Jennifer’s second assignment of error is overruled.

                                   Third Assignment of Error

        {¶51} In Jennifer’s third assignment of error, she argues that the trial court

erred in finding the minor children dependent in the original adjudicatory hearing

pursuant to R.C. 2151.04(B) when, she claims, such an allegation was not

contained in the complaint.             Specifically Jennifer argues that the complaints

claimed that A.S. and M.M. were dependent pursuant to R.C. 2151.04(C) rather

than R.C. 2151.04(B) as they were found by the magistrate and the trial court. We

find that Jennifer’s argument is barred by the doctrine of res judicata.

        {¶52} The doctrine of res judicata has two aspects: claim preclusion and

issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio-

331. As to the claim preclusion aspect, this doctrine provides that an existing,

final judgment between the parties to litigation bars all claims which were litigated

or could have been litigated in that lawsuit from being relitigated in a later action.


6
 Factor (e)(10) would be relevant to the father as the court found the father had abandoned the children.
However, this appeal pertains to the mother’s rights, so we decline to address this issue.

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Case Nos. 1-12-01 and 1-12-032


Grava, supra, at 381.      This doctrine has been held to apply to appellate

proceedings in both criminal and civil cases.

       {¶53} In the present case, when A.S. and M.M. were adjudicated as

dependent children by the magistrate, no objection was made to the magistrate’s

decision. The magistrate’s decision was later adopted by the trial court, and the

specific findings of dependency related to each child were made the order of the

court. No appeal was ever taken from that judgment. The parties then proceeded

to the permanent custody hearing. The appeal in this case is taken from the

December 20, 2011 judgment entry awarding permanent custody to ACCSB.

Under the doctrine of res judicata, Jennifer cannot now claim the magistrate’s

finding of dependency in the original adjudicatory hearing, and the trial court’s

adoption of it, as error on appeal. See In re S.J., 9th Dist. No. 23199, 2006-Ohio-

6381 ¶¶ 14-17. Accordingly, Jennifer’s third assignment of error is overruled.

       {¶54} For the foregoing reasons Jennifer’s assignments of error are

overruled and the judgments of the Allen County Court of Common Pleas,

Juvenile Division, are affirmed.

                                                              Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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