[Cite as In re J.M., 2016-Ohio-7306.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 104028




                                         IN RE: J.M.
                                        A Minor Child

                                    [Appeal by R.C., Father]




                                        JUDGMENT:
                                         AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. AD 12920167

        BEFORE: Kilbane, J., Keough, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                 October 13, 2016
ATTORNEY FOR APPELLANT

Judith M. Kowalski
333 Babbitt Road
Suite 323
Euclid, Ohio 44123



ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Laura M. Brewster
Assistant County Prosecutor
Cuyahoga County Division of Children and Family Services
3955 Euclid Avenue
Cleveland, Ohio 44115



GUARDIAN AD LITEM FOR J.M.

Dale M. Hartman
2195 South Green Road
Cleveland, Ohio 44121



GUARDIAN AD LITEM FOR B.F.

Carla L. Golubovic
P.O. Box 29127
Parma, Ohio 44129
MARY EILEEN KILBANE, J.:

       {¶1} Appellant, R.C. (“Father”), appeals from the juvenile court order awarding

permanent custody of his daughter, J.M., to the Cuyahoga County Department of Children

and Family Services (“CCDCFS”) and denying his motions for legal custody.1 For the

reasons set forth below, we affirm.

       {¶2} Father and B.F. (“Mother”) are the parents of J.M.         On December 4, 2012,

while J.M. (who was then three years-old) and her step-brother G.F. III (who was then

one year-old) were residing with Mother and her husband, G.F. II, G.F. II was arrested for

felonious assault upon Mother. On December 5, 2012, CCDCFS filed a complaint,

alleging that J.M. and G.F. III are neglected and requesting temporary and

predispositional custody. That same day, the trial court awarded CCDCFS emergency

preadjudicatory temporary custody of both children.

       {¶3} The trial court appointed a guardian ad litem (“GAL”) for J.M., and the

dependency hearing was set for February 8, 2013.         The hearing was later continued to

March 6, 2013, in order to provide notice to Father.           Father did not appear at the

rescheduled hearing.     Mother did appear and was represented by counsel.              At the

hearing, Mother admitted the following:




       1
         Mother also appealed from the award of permanent custody of J.M. and G.F. III to CCDCFS
in a separate appeal. See In re J.M. & G.F., III, 8th Dist. Cuyahoga No. 103040.
1.    Mother and * * * G.F. II, have engaged in acts of domestic violence
      sometimes in the presence of the children, placing the children at risk
      of serious harm.

2.    On or about December 1, 2012, Mother and G.F. II engaged in acts
      of domestic violence. The child, G.F. III, was in the home at the
      time of the domestic violence. Mother was approximately nineteen
      weeks pregnant during the event and taken by ambulance to a local
      emergency room after the incident. She returned to the hospital on
      or about December 3, 2012 in labor. The child died hours after
      delivery.

3.    G.F. II is currently in jail subsequent to being charged with felonious
      assault due to the above described domestic violence incident. * *
      *

4.    Mother minimizes the domestic violence and needs domestic
      violence counseling to provide safe and adequate care of the
      children.

5.    Mother is diagnosed with bipolar disorder and needs to follow
      through with recommended services to provide safe and adequate
      care of her children.

6.    Mother lacks suitable housing to care for the children.

7.    Mother requires parenting classes and anger management services to
      provide safe and adequate care for the children.

8.    Father G.F. II has an anger management problem that prevents him
      from providing safe and adequate care of his child.

9.    Father G.F. II has a substance abuse problem that prevents him from
      providing safe and adequate care of his child.

10.   Father of J.M., R.C., is currently awaiting trial for charges of
      domestic violence and felonious assault. * * *

11.   Father of J.M., R.C., has established paternity but has failed to visit

      or communicate with the child on a consistent basis.
       {¶4} The trial court subsequently concluded that J.M. is a neglected child, and

that her return to the home is contrary to her best interest and welfare.       Bimonthly

review hearings were held from 2013 to 2014. In that time period, the GAL submitted

reports outlining that J.M. had been molested by the maternal grandfather and identifying

the ongoing issues stemming from that abuse.          During most of this time period,

according to the GAL, Father was “out of state for most of the case avoiding domestic

violence warrants.”      The GAL also advised the court that, although J.M. is very

articulate, she is “not of sufficient age [five years old] and/or maturity to express her

wishes” in the matter.

       {¶5} On May 28, 2014, CCDCFS moved for permanent custody of J.M. under

R.C. 2151.414(B)(1)(d). CCDCFS alleged that Mother had made insufficient progress

on her case plan goals, and Father “never presented himself to CCDCFS” in order to

complete an assessment as to his need for reunification-related services.

       {¶6} On September 8, 2014, Father appeared in the matter for the first time, and

counsel was appointed for him. On February 2, 2015, Father filed a motion for legal

custody of J.M.     On April 13, 2015, after meeting with Father and observing his

interaction with J.M., the GAL prepared a followup report.       The GAL noted that he met

with and observed J.M. with Father, Father’s fiancée, K.Z. (“K.Z.”), and their children.

The GAL reiterated that J.M. continued to lack sufficient maturity to express her wishes

regarding custody. The GAL also highlighted ongoing concerns for J.M. that, if not

remedied, should cause the court to terminate parental rights.    The GAL wrote:
       J.M.’s father wants legal custody. He does not work and is dependent on
       [K.Z.] who happens to be a very close friend of [Mother]. [K.Z.] supports
       [Father] and her own children, takes care of the home, and also takes a very
       active role in the visits. Although [K.Z.] seems suitable, the undersigned
       does not believe [Father] could independently take care of the children.
       Moreover, since [Mother] and [K.Z.] are very close, a heretofore
       unanswered question remains as to whether legal custody would not be a
       sham to allow [Mother], who has not done her case plan and has not shown
       an ability to care for or protect her children, [to] care for the children.

       {¶7} On April 21, 2015, Father filed an amended motion for legal custody in

which he asked the court to award him legal custody of both J.M. and G.F. III. In a

second amended motion for legal custody, Father alternatively asked the trial court to

award custody of both children to K.Z. Mother advised the court that she supported

Father’s second amended motion for legal custody.

       {¶8} A dispositional hearing was held on July 30, 2015.          CCDCFS Social

Worker Michelle Legat (“Social Worker Legat”) testified that J.M., who was five and

one-half years old by the time of the hearing, has been the victim of molestation and is

currently in counseling.   She has nightmares, engages in “sexualized behaviors,” has

symptoms of ADHD, and is extremely aggressive.      No other family members are able to

take custody of J.M., and she and G.F. III have both been in the foster care of A.C.

(“A.C.” or “the foster mother”) since 2012. J.M. refers to A.C., who is 70 years old, as

“granny,” and they are very bonded.     The home is very structured, which has helped

calm J.M. Additionally, the foster mother installed an alarm in the bathroom of the

home in order to help ensure that J.M. does not engage in inappropriate behavior with

G.F. III.
       {¶9} Social Worker Legat further testified that G.F. II has not met with CCDCFS

officials to work on his case plan, and that he is wanted by the police. Mother is still

married to G.F. II, but she resides with another individual and is expecting his child.

Mother has worked on her case plan and completed domestic violence and parenting

classes.   Two months before the hearing, Mother began mental health counseling and

obtained employment. She moved into her boyfriend’s apartment, which is infested with

cockroaches.    Her   boyfriend is currently incarcerated.   Mother completed an anger

management class, but she recently got into a physical altercation regarding a gaming

system.    Visits with the children were “playtime” and unstructured.       Social Worker

Legat opined that Mother has made “moderate” progress on her case plan but did not

benefit from the services she obtained, and is unable to provide for the basic needs of her

children or to care for them appropriately.

       {¶10} Social Worker Legat further testified that Father did not see J.M. from the

time she was two years old until she turned five years old.     He stated that he avoided

visiting J.M. because of his dislike for G.F. II. Once contact was reestablished, Father

missed a few scheduled visits because it was too far for him to travel.   After the location

was changed, Father’s attendance improved, but Social Worker Legat testified that he is

always an hour late and spends more time talking to her than interacting with J.M.    K.Z.,

who has one child with Father and four other children, initially accompanied Father

during the visits, but she later stopped visiting J.M. When K.Z. was present at the visits,

she took over playing with and caring for the children, and Father “went in the
background.” Within the preceding six weeks before trial, K.Z. stopped visiting J.M.,

and J.M. has not asked about K.Z.’s absences.

       {¶11} Social Worker Legat further testified that Father has not paid support for

J.M., and he has ten children in addition to J.M. He also has a “significant domestic

violence and felonious assault history and civil case history,” including a domestic

violence conviction stemming from an attack on one of his other children. That child is

now the subject of delinquency proceedings.       Father currently resides with K.Z., their

child, and K.Z.’s four other children.   Father informed Social Worker Legat that he had

worked as a mechanic, but because of issues with his mechanic’s license, he is now

working as a part-time delivery person with K.Z.’s family’s business.          He did not

provide Social Worker Legat with any pay stubs or other documentation.       K.Z. likewise

had no documented income and stated that she was paid “under the table.”       Father also

informed Social Worker Legat that his child support payments are not current and an

attachment order in the amount of $14,533 was issued against him in 2012. He stated

that he only pays child support when ordered to do so by the court, and he has been found

in contempt of court for nonpayment.

       {¶12} Social Worker Legat further testified that the home Father shares with K.Z.

is clean and there is sufficient food, but J.M. would not be able to have her own bedroom,

which would be best for her in light of her abuse-related issues. Two of K.Z.’s other

children have a “mental health diagnosis.”      Social Worker Legat opined that Father is

not able to prove the basic needs for any of his children, including J.M. Social Worker
Legat testified that J.M. and G.F. III “both stated that they wanted to stay with [the foster

mother].” J.M. had previously stated that she would like to go home with Mother, and

she “is afraid to go home to [Father’s] because he doesn’t have enough space for her.”

Finally, Social Worker Legat stated that both Mother and Father are likeable people who

love J.M. very much, but neither parent can provide the home and stability that she

deserves, and therefore, the best interest of J.M. would be served by awarding permanent

custody to CCDCFS.

       {¶13} Ohio Guidestone Therapist Jamie Saunt (“Therapist Saunt”) testified that

J.M. received therapy for aggression-related issues from 2011 to 2012.        The case was

closed at the request of Mother, but was then reopened in 2013, after J.M. began to

engage in sexual acting out and aggression that is often targeted at G.F. III. Therapist

Saunt engages in art therapy and play therapy with the children to teach them appropriate

behavior and to help the parents with parenting issues. She has met with the children in

the foster home and at Mother’s home. Although Mother had been making progress

toward reunification, by March 2014, Mother’s participation in therapy had become more

sporadic. Therapist Saunt determined that it would be best to continue the therapy at the

home of the foster mother.

       {¶14} Therapist Saunt further testified that an integral part of the treatment plan

involves educating the caregivers, helping them to parent and model appropriate

behavior, and helping them improve their relationships with the children. Therapist

Saunt is in regular communication with the foster mother who has a very strong
relationship with the children. Her home is structured, safe, and nurturing. J.M. and

G.F. III have separate bedrooms.      The children have thrived with her and are meeting

their therapeutic goals.       They have made tremendous progress “mostly due to the

environment of [the foster mother’s] home.”

       {¶15} Therapist Saunt further testified that she met with Mother eight times and

twice with Father. During Father’s first visit, K.Z. and Father arrived with “a lot of

other children so [Saunt] wasn’t really able to do any therapy” with them.            Father

indicated that he could manage J.M.’s behavior, but both he and K.Z. were much more

engaged with the other children. During the second visit, Father arrived 15 minutes

before the end of the visit.

       {¶16} Father testified on his own behalf and stated that he has eleven children, five

of whom are emancipated.        He admitted that he did not see J.M. from the time that J.M

“went into the system,” i.e., December 2012 until G.F. II was imprisoned.             Father

blamed the absence on G.F.II.’s conduct.     Father further testified that he and K.Z. reside

with their three-year-old son and K.Z.’s four other children from a prior relationship,

including a seventh grader, fourth grader, third grader, and first grader.    One of K.Z.’s

children has Tourette Syndrome.        K.Z. works at a delivery service that her family

manages, and for the past six weeks, Father has also worked there approximately 16 hours

per week.    He is paid “under the table.”    He admitted that he had not paid any support

for J.M. for at least a year.     He is subject to child support orders for several of his

children, but he is not current in his payments and has been found in contempt of court.
Father admitted that he had been imprisoned for a total of eight and one-half years.

During that time, he obtained his GED, completed auto mechanic courses, domestic

violence treatment, and parenting classes.    K.Z. is extremely supportive and helps him

with the children, and she also helps him work on his case plan goals.

       {¶17} Father stated that he is capable of taking care of the well-being and safety of

the children despite J.M.’s issues of sexually acting out and aggression. He stated that

he has stopped working on another of his children’s delinquency issues so that he can

focus on J.M.    He admitted, however, that he does not know what triggers J.M.’s

aggression and is not familiar with her individualized education plan. He also admitted

that she would not have her own bedroom at his home.

       {¶18} K.Z. testified that her children are doing very well in school, but her oldest

son is in counseling for emotional and expressive disabilities. K.Z. is planning on

returning to school to complete her medical assistant degree.   She acknowledged that she

was convicted of misdemeanor assault in 2006 following a confrontation with her

ex-husband.

       {¶19} K.Z. testified that Father is upbeat, charismatic, and patient with the

children.   He takes good care of them, plays with them, and helps them with their

homework. He also does housework and makes dinner. K.Z. admitted, however, that

she has not visited with J.M. or G.F. III during the six weeks before trial. She was not

familiar with their diagnoses and did not know where they received services.       She has

not engaged in “specialized techniques” to help with the children’s therapies.
       {¶20} The GAL testified that he observed Father during supervised visitations at

CCDCFS. During those visits, “there were a whole bunch of kids there.” Father and

Mother were taking the lead in terms of taking care of the children, but the visitation

mostly involved children playing.

       {¶21} On December 16, 2015, the trial court terminated the parental rights of

Mother and Father and awarded permanent custody of J.M. to CCDCFS.

       {¶22} Father now appeals and assigns five errors for our review.   For the sake of

clarity, we will address the assignments of error out of their predesignated order and

group them together where it is appropriate to do so.

                                Assignment of Error One

       The Juvenile Court abused its discretion when it denied Father’s motion for
       legal custody of the children to [K.Z.], as said disposition would have
       vitiated the need for parental rights termination and served the children’s
       best interests.

                                Assignment of Error Two

       The juvenile court abused its discretion in determining that clear and
       convincing evidence supported its decision to award permanent custody to
       [CCDCFS].

                               Assignment of Error Three

       The decision to award permanent custody [of J.M. to CCDCFS] was against
       the manifest weight of the evidence.

                                Assignment of Error Four

       The trial court abused its discretion in finding the award of permanent
       custody was in the best interest of the child.

                                Assignment of Error Five
      The juvenile court erred to the prejudice of [Father] and did not act in

      furtherance of the best interests of [J.M.], by failing to appoint an

      [independent attorney to represent J.M.’s] legal interest.

                         Failure to Appoint Independent Counsel

      {¶23} In his fifth assignment of error, Father complains that the trial

court erred in failing to appoint counsel for J.M. because her wishes conflicted with the

recommendation of the GAL.

      {¶24}    In general, when an attorney is appointed as GAL for a child, that attorney

may also act as counsel for the child, absent a conflict of interest. In re Janie M., 131

Ohio App.3d 637, 639, 723 N.E.2d 191 (6th Dist.1999), citing R.C. 2151.281(H) and In

re Smith, 77 Ohio App.3d 1, 14, 601 N.E.2d 45 (6th Dist. 1991); R.C. 2151.281(H).

      {¶25} Under Sup.R. 48(D):

      (7)     When a court appoints an attorney to serve as both the [GAL] and
              attorney for a child, the attorney shall advocate for the child’s best
              interest and the child’s wishes in accord with the Rules of
              Professional Conduct. Attorneys who are to serve as both [GAL]
              and attorney should be aware of Rule 3.7 of the Rules of
              Professional Conduct and act accordingly.

      (8)     When a [GAL] determines that a conflict exists between the child’s

              best interest and the child’s wishes, the [GAL] shall, at the earliest

              practical time, request in writing that the court promptly resolve the

              conflict by entering appropriate orders.

      {¶26} Further, Ohio Rules of Juvenile Procedure 4(C)(2) provides:
If a person is serving as [GAL] and as attorney for a ward and either that

person or the court finds a conflict between the responsibilities of the role

of attorney and that of [GAL], the court shall appoint another person as

[GAL] for the ward.
       {¶27} In In re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, ¶

17, the Ohio Supreme Court held that courts should determine, on a case-by-case basis,

whether the child actually needs independent counsel, “taking into account the maturity of

the child and the possibility of the [GAL] being appointed to represent the child.”

Ohio courts have concluded that “the appointment of independent counsel is warranted

when a child has ‘repeatedly expressed a desire’ to remain or be reunited with a parent

but the child’s [GAL] believes it is in the child’s best interest that permanent custody of

the child be granted to the state.”     In re Hilyard, 4th Dist. Vinton Nos. 05CA600

through 05CA609, 2006-Ohio-1965, ¶ 36 (footnotes omitted); In re N.P. & E.M., 11th

Dist. Lake Nos. 2015-L-061 and 2015-L-062, 2015-Ohio-4542, ¶ 18; In re M.H., 12th

Dist. Fayette No. CA2012-11-035, 2013-Ohio-1063, ¶ 34; In re B.W., 9th Dist. Medina

No. 12CA0016-M, 2012-Ohio-3416, ¶ 42. However, where the child lacks the maturity

to make a decision of this importance, the court has the discretion to refrain from

appointing independent counsel.        In re M.W., 8th Dist. Cuyahoga No. 83390,

2005-Ohio-1302, ¶ 15.      Accord In re K. & K.H., 8th Dist. Cuyahoga No. 83410,

2004-Ohio-4629, ¶ 9 (“the level of cognitive maturity exhibited by a four-year-old

non-developmentally delayed child is not that which would indicate the need for

independent legal counsel.”); In re G.C. & M.C., 8th Dist. Cuyahoga No. 83994,

2004-Ohio-5607 (same holding as In re K. & K.H.) Accord R.C. 2151.414(D)(1)(b) (trial

court shall consider the child’s wishes “as expressed

directly by the child or through the child’s [GAL], with due regard for the maturity of the
child.”)

       {¶28} In this matter, J.M. was five and one-half years old at the time of trial.

Social Worker Legat testified that J.M. has indicated that she would like to go home with

Mother, B.F.    J.M. “is afraid to go home to [Father] because he doesn’t have enough

space for her” and both J.M. and G.F. III “both stated that they wanted to stay with [the

foster mother].”   There is no clear indication in the record that the children want to stay

with Father, and in light of his criminal record, the trial court could conclude that J.M. is

prohibited from being placed with him under R.C. 2151.414(E)(6) and (7).            Further,

there is no indication in the record that J.M. wants to live with K.Z. Moreover, the GAL

repeatedly advised the court that J.M. was extremely immature.         Therefore, the court

acted within the sound exercise of its discretion and properly determined that J.M. did not

need independent counsel in this matter.

       {¶29} The Father’s fifth assignment of error is overruled.

                                   Legal Custody to K.Z.

       {¶30} In his first assignment of error, Father argues that the trial court erred in

refusing to grant his motion for legal custody of J.M. and the alternative motion for legal

custody to be awarded to K.Z. He argues that the award of legal custody to him or to

K.Z. is a legally secure placement that is both in J.M.’s best interest and “less drastic”

than the termination of parental rights.

       {¶31}   In considering a permanent custody motion, the trial court has discretion

to award legal custody to either parent or to any other person who files a motion
requesting legal custody pursuant to R.C. 2151.353(A)(3). However, R.C. 2151.414(D)

does not make the availability of a placement that would not require a termination of

parenting rights an all-controlling factor, and does not even require the court to weigh that

factor more heavily than other factors.          In re Schaefer, 111 Ohio St.3d 498,

2006-Ohio-5513, 857 N.E.2d 532, ¶ 63. Further, a juvenile court need not determine by

clear and convincing evidence that “termination of appellant’s parental rights was not

only a necessary option, but also the only option.” Id. at ¶ 64. Rather, the statute

“requires the court to find the best option for the children.” Id.

       {¶32} In considering a disposition of legal custody, there is no specific test or set

of criteria that must be followed in determining what is in a child’s best interest in a legal

custody case.      In re D.T., 8th Dist. Cuyahoga Nos. 100970 and                    100971,

2014-Ohio-4818, ¶ 20.     The R.C. 2151.414(D) factors are instructive. Id. These factors

include: the interaction of the child with the child’s parents, relatives, and caregivers; the

wishes of the child, as expressed directly by the child or through the child’s GAL; the

custodial history of the child; and the child’s need for a legally secure permanent

placement.   R.C. 2151.414(D).       The trial court’s decision to grant or deny a motion

for legal custody is within the broad discretion of the trial court. In re D.T. at ¶ 22.

       {¶33} As to an award of legal custody to Father, the record establishes that he has

a prior record that includes a conviction for domestic violence upon one of his other ten

children. He obtained employment only six weeks prior to trial and is not current in his

child support obligations. The GAL opined that Father could not independently take
care of the children.   The court concluded that legal custody to Father would require

J.M. to share a room, which is not advised because of her abuse-related acting out.       In

accordance with the foregoing, we cannot conclude that the trial court abused its

discretion in denying Father’s motion for legal custody.

       {¶34} As to an award of legal custody to K.Z., the GAL concluded that K.Z.

supports Father and her own children, takes care of the home, takes a very active role in

the visits, and “seems suitable.”   However, the GAL questioned whether legal custody to

K.Z. would be a “sham to allow [Mother]” to take care of the children.         At trial, K.Z.

admitted that she had not visited the children in the past six weeks and she knew very

little of their diagnoses or their treatment. In addition, the court stated:

       [K.Z.] was investigated * * * and the agency was not convinced that it
       would be in the children’s best interest for [K.Z.] to be given legal custody.
        She already has four biological children for which she struggles to provide
       adequate shelter, food and clothing. She has a prior criminal conviction
       for assault. Her initial visits with the children were consistent and
       frequent, however, they diminished in both areas for a significant period.

       ***
       [K.Z.] is not a relative of either child. Her initial visits with the children
       were consistent, but the later irregularity has failed to create the bond that
       should be present. Additionally, she is residing with [Father] so the same
       challenges would exist regarding housing. Moreover, she, like [Father],
       has a prior criminal conviction for a violent offense.

       {¶35} In accordance with the foregoing, we cannot conclude that the trial court

abused its discretion in denying Father’s alternative motion for legal custody to be

awarded to K.Z.

       {¶36} The first assignment of error is without merit.
                                    Permanent Custody

       {¶37} In his remaining assignments of error, Father asserts that the trial court erred

in awarding permanent custody of J.M. to CCDCFS. Father argues that he can provide a

suitable home for J.M., J.M. did not want parental rights to terminate, and the foster

mother is 70 years old and not committed to adopting J.M.

       {¶38} “An appellate court will not reverse a juvenile court’s termination

of parental rights and award of permanent custody to an agency if the judgment is

supported by clear and convincing evidence.”         In re N.B., 8th Dist. Cuyahoga No.

101390, 2015-Ohio-314, ¶ 48; In re M.J., 8th Dist. Cuyahoga No. 100071,

2013-Ohio-5440, ¶ 24.     “Clear 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, 120

N.E.2d 118 (1954). A reviewing court is required to examine the record to determine

whether the trier of fact had sufficient evidence to satisfy the clear and convincing

standard.    In re T.S., 8th Dist. Cuyahoga No. 92816, 2009-Ohio-5496, ¶ 24.

“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.”    In re S.D., 8th Dist. Cuyahoga Nos. 99410, 99411, and 99412,

2013-Ohio-3535, ¶ 13, citing In re B.M., 8th Dist. Cuyahoga No. 96214,

2011-Ohio-5176, ¶ 32.

       {¶39} R.C. 2151.414(B) authorizes a court to grant permanent custody of a child to
an agency if, after a hearing, the court determines, by clear and convincing evidence that:

(1) the existence of any one of the conditions set forth in R.C. 2151.414(B)(1)(a) through

(d); and (2) that granting permanent custody to the agency is in the best interest of the

child. R.C. 2151.414.

       {¶40} As to the first factor, CCDCFS asserted that the award of permanent custody

was authorized under R.C. 2151.414(B)(1)(d), which states:

       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.

       {¶41} As to the second factor, R.C. 2151.414(D)(1) directs that the trial 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 [GAL], with due regard for the maturity of the child;

       (c)    The custodial history of the child, including whether the child has
              been in the temporary custody of one or more public children
              services agencies or private child placing agencies for twelve or
              more months of a consecutive twenty-two-month period, 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;

       (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.

       {¶42} In conducting a best interest analysis under R.C. 2151.414(D), “[t]he court

must consider all of the elements in R.C. 2151.414(D) as well as other relevant factors.

There is not one element that is given greater weight than the others pursuant to the

statute.” In re Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.

       {¶43} In this matter, the evidence demonstrates that J.M. was placed in the

emergency custody of CCDCFS in December 2012, and CCDCFS was then granted

preadjudicatory custody in March 2013.         J.M. has therefore been in the custody of

CCDCFS for 12 or more months of a consecutive 22-month period. The evidence also

demonstrates that reasonable efforts were made to reunify J.M. with her parents through

various programs and specific goals as set forth in the case plan.     Mother engaged in

numerous services and programs but, unfortunately, was not able to benefit from them.

Father, who has a criminal record that includes a conviction for domestic violence upon

one of his other ten children, has a considerable child support arrearage and admits that he

only pays child support when ordered to do so by the court. He had no contact with J.M.

for a significant portion of her young life.   Social Worker Legat stated that Father did

not see J.M. from the time she was two years old until several months before trial.
Similarly, the GAL also advised the court that Father had no contact with the child for

approximately two years. Father admitted that he did not maintain contact with J.M.

after the CCDCFS obtained custody of her, but he claimed that this was caused by the

conduct of G.F. II., and he resumed contact after G.F. II was imprisoned.             Father

admitted that he did not pay support for the child, and he obtained employment only six

weeks before trial. The court noted that Father failed to provide sufficient proof of his

employment with K.Z.’s family’s business.         During the supervised visits, Father

frequently arrived late and spent considerable time speaking with Social Worker Legat.

He and K.Z. reside in a home with their child and K.Z.’s other four children.     There is

not adequate space for J.M. to have her own room, which is recommended to meet J.M.’s

specialized needs.    K.Z. was unaware of J.M.’s diagnoses and treatment requirements

and stopped visiting with J.M. in the six weeks prior to trial. On the other hand, J.M. is

thriving in foster care and she has expressed the desire to remain with her foster mother.

As stated by the trial court:

       Father has committed an act of domestic violence against one of J.M.’s

       siblings, has not provided sufficient proof of his employment status and [he

       is] residing in a home that does not have adequate space to meet the

       specialized needs of J.M.

       {¶44} Upon careful consideration of the record, we conclude that there is

competent, credible, clear and convincing evidence to support the trial court’s termination

of parental rights and award of permanent custody to CCDCFS. The trial court made the
appropriate considerations in this case and found by clear and convincing evidence that,

although reasonable efforts were made toward reunification, J.M. cannot and should not

be placed with either of her parents, the reunification of J.M. and Father is not in the

child’s best interest, and that it is in the child’s best interest to be placed in the permanent

custody of CCDCFS. Moreover, in light of the clear and convincing evidence that

established that J.M. had been in the continuous custody of CCDCFS since December

2012, and that termination of parental rights and the award of permanent custody to

CCDCFS is in her best interest, the trial court’s decision is not against the manifest

weight of the evidence.

       {¶45} Father’s second, third and fourth assignments of error are overruled.

       {¶46} Judgment is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

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

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

the Rules of Appellate Procedure.




MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
TIM McCORMACK, J., CONCUR
