[Cite as In re D.W., 2019-Ohio-1880.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: D.W., JR.,                           :       JUDGES:
                                            :       Hon. William B. Hoffman, P.J.
                                            :       Hon. Patricia A. Delaney, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
                                            :
                                            :       Case No. 19CA2
                                            :
                                            :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Juvenile
                                                    Division, Case No. 2016 DEP 00167




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 13, 2019




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant N.Z.

EDITH A. GILLILAND                                  JOHN C. O'DONNELL, III
Richland County Children Services                   10 West Newlon Place
731 Scholl Road                                     Mansfield, Ohio 44902
Mansfield, Ohio 44907
Richland County, Case No. 19CA2                                                 2

Baldwin, J.

      {¶1}    Appellant N.Z. appeals from the January 10, 2019 Entry of the Richland

County Court of Common Pleas, Juvenile Division, approving and adopting the

Magistrate’s Decision.

                         STATEMENT OF THE FACTS AND CASE

      {¶2}    Appellant N.Z. is the mother of D.W., Jr. (“DW”) (DOB 7/24/13). On

December 9, 2016, the Richland County Children Services Board (RCCSB) filed a

complaint alleging that D.W. was a dependent child. An amended complaint was filed

December 14, 2016.

      {¶3}    On January 20, 2017, RCCSB filed a motion seeking temporary custody of

D.W. As memorialized in a Magistrate’s Order filed on February 6, 2017, the child was

placed in the temporary custody of the agency.

      {¶4}    The Guardian ad Litem, in a report filed on October 10, 2018, recommended

that D.W. be placed in the permanent custody of RCCSB. Following a hearing the

Magistrate, in a Magistrates’ Decision filed on March 28, 2017, found D.W. to be a

dependent child and placed him in the temporary custody of RCCSB. The trial court’s

Judgment Entry approving the Magistrate’s Decision was filed on March 28, 2017.

      {¶5}    Thereafter, on July 27, 2018, RCCSB filed a motion seeking permanent

custody of D.W. RCCSB, in its motion, indicated that D.W. had been in the temporary

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

period and that, alternatively, D.W. could not and should not be placed with appellant

within a reasonable period of time. The Guardian ad Litem, in a report filed on October

10, 2018, recommended that D.W. be placed in the permanent custody of RCCSB. A
Richland County, Case No. 19CA2                                                    3


hearing on the motion commenced on October 17, 2018 before a Magistrate. Neither

appellant nor the child’s father were present at the hearing, although both were

represented by counsel.

      {¶6}    At the hearing, Benjamin Chapman testified that D.W, had been a foster

child in his home for just over two years and had some behavioral struggles that were

improving. Chapman testified that D.W. was in counseling and that he and his wife

intended to continue the counseling. Chapman testified that they had a fetal alcohol

spectrum disorder evaluation scheduled for D.W. because they were concerned that D.W.

exhibited similarities to their first adopted son who had been diagnosed with the disorder.

Chapman testified that D.W. had confusion with directions and threw tantrums and fits.

He testified that he and his wife had a generally positive relationship with D.W. and that

he fit in with the other children in the home. Chapman testified that D.W. called his sons

brother and they called D.W. their brother and that D.W. had a relationship with

Chapman’s extended family.

       {¶7}   Chapman testified that D.W. had visited with his mother while in their care

and that D.W.’s mother did not want to talk about him a lot and was totally fine that they

were taking care of her son. The more regular and closer together the visits were between

D.W. and his mother, the more frequently he acted defiantly or had tantrums. Chapman

testified that he and his wife wanted to adopt D.W. despite concerns over his behavioral

issues. He testified that D.W. had dietary restrictions namely, a dairy intolerance and saw

a lot of doctors. He further testified that D.W. was in kindergarten and was doing well and

getting good reports. He testified that they had asked the school for D.W. to be evaluated

for IEP (individualized education plan) services. According to Chapman. D.W. was in
Richland County, Case No. 19CA2                                                     4


speech and occupational therapy when he was first placed with them because he could

not speak very well and used words incorrectly. D.W. had successfully completed speech

and occupational therapy.

       {¶8}   On cross-examination, Chapman testified that D.W. had last visited with his

mother at least two months ago and that the visitation was “[v]ery inconsistent.” Transcript

at 16. He testified that appellant missed about half of the visits and that D.W. was placed

with them on September of 2016.

       {¶9}   The next witness to testify was Kenneth Haynes, the CASA/Guardian ad

Litem. He testified that he recommended that it was in D.W.’s best interest to be placed

in the permanent custody of the agency and to be available for adoption. The following

testimony was adduced when he was asked the basis for his recommendation;

       {¶10} “A: Having the time that he’s been in the foster home, uh seems to uh, from

my investigations, been the most uh stable environment that he’s been in pretty much his

whole life. Uh, prior to being in the foster home, uh he spent time with different people.

Um, uh, his mother would leave him off uh with friends or acquaintances uh for periods

of time, which I believe was the reason he ended up with Children Services. Um, the uh,

his mother, [appellant], um over the two years that I’ve been on the case, uh was very

inconsistent uh with her visitations with him. Uh, his father was in uh, in prison during uh

this time, uh and not uh, not present in his life. Um, and it’s been my observation that the

foster family has been very uh, very bonded with him, uh very caring with him, very loving.

Um, they uh, they met all of his needs. Uh, and uh they just, he’s just in a very loving and

very stable environment right now.”

Transcript at 22.
Richland County, Case No. 19CA2                                                    5


      {¶11} Haynes testified that he was comfortable with the possibility of the

Chapmans adopting D.W. and that D.W. interacted well with the other children in the

Chapman home and they treated each other like brothers and sisters.          When asked

about D.W.’s relationship with appellant, he testified that they seemed to have “more of a

brother-sister relationship than a mother-son relationship” and that there was little

physical contact between them when he saw them together. According to Haynes,

appellant seldom asked D.W. questions about his life and needs and seemed more

concerned about herself. He testified that appellant had rapid mood swings and displayed

fits of anger and irritability. He was unsure where appellant was currently living and

testified that she was not good at complying with her case plan objectives. When asked

when appellant had last visited with D.W., Haynes testified that it was two or three months

before and that appellant had indicated that she was done with visitation and was not

going to do any more counseling or jump through any more hoops..

      {¶12} On cross-examination, Haynes testified that his last face-to-face contact

with appellant was two or three months prior and that he had made attempts to contact

her and had no idea where she was.       Haynes testified that he observed D.W. interact

with his foster parents and that they were very concerned with him and were loving and

attentive. He testified that D.W. appeared to be happy and content and at home in his

placement. He testified that D.W. called the foster parents mom and dad.

      {¶13} Breanne Crossen, a caseworker with RCCSB testified that she was

assigned D.W.’s case. She testified that on July 20, 2014, the agency had received a call

that appellant had left D.W. in the care of a woman named Lisa and that Lisa was not

able to get hold of appellant and did not have contact information for her. Appellant was
Richland County, Case No. 19CA2                                                     6


only supposed to have left D.W. in Lisa’s care for a day and he had been there for three

or four days. Crossen testified that D.W. did not have clothes or diapers. Crossen testified

that appellant was charged with endangering children and that the day the call came in,

D.W. “was safety-planned to Shaquita Miller, who had previously cared for [D.W.].”

Transcript at 47.

       {¶14} Crossen testified that a case plan was prepared and that the plan was filed

on May 11, 2017. She testified that under the plan, appellant was to have a mental health

assessment and a drug and alcohol assessment and that appellant was to have stable

housing and income and parenting education.        Crossen testified that she received the

case at the end of January of 2015 and that appellant had completed a mental health

assessment back then at Catalyst. While appellant completed the assessment, she did

nothing further. The mental health assessment recommended that appellant undergo

individual counseling. Crossen testified that she did not know where appellant was for the

entire year of 2015 and that appellant had not ever indicated to her that in the one year

period between February of 2015 and February of 2016, she had received any type of

mental health counseling services. When appellant returned to Richland County in

February of 2016, the two discussed appellant going to Catalyst, but appellant stated that

she did not want to go there and decided to do a mental health assessment at Family Life

Counseling. After the assessment, it was recommended that appellant receive counseling

for anxiety and depression. According to Crossen, appellant attended two three

counseling appointments and stopped attending after that.

       {¶15} Crossen testified that appellant completed another mental health

assessment with Catalyst on May 21, 2017 and was diagnosed with anxiety disorder,
Richland County, Case No. 19CA2                                                      7


depression and alcohol abuse and that it was recommended that she complete individual

counseling. Appellant attended three counseling sessions in June and July of 2017 and

then stopped attending. Appellant started attending again and attended three more

sessions between February 12, 2018 and April 30, 2018. Crossen was unaware of any

mental health treatment that appellant was involved in. Crossen testified that it was the

agency’s position that appellant has not successfully completed her case plan objective

for mental health. She further testified that she asked appellant to complete a drug and

alcohol assessment, but that appellant did not follow through and that appellant had not

successfully completed the drug and alcohol treatment component of her case plan.

Crossen was unaware of appellant’s current housing situation and testified that she had

not seen or had any contact with appellant since June of 2018. She indicated that she

could not say if appellant had stable housing since she did not know where appellant was

living and that the last time she was aware that appellant was employed was in December

of 2017. Appellant had had a job for a couple of months, but quit because she was trying

to complete her case plan objectives. When asked if it was the agency’s position that

appellant had the financial ability to meet D.W.’s basic needs, Crossen testified that she

did not know if appellant could provide for him since she did not know appellants’ current

situation. She testified that she did not believe that appellant would be able to provide for

his needs. When asked the reason for her conclusion, Crossen testified as follows:

       {¶16} “A: When [appellant] had him, we gave [appellant] a chance to have [D.W.]

back in 2016, March, 2016--. She came up here, she moved into an apartment, she was

supposed to get him into protective daycare. She did not get that set up. She did have

Devall start play therapy at Family Life Counseling. She only took him to two or three
Richland County, Case No. 19CA2                                                      8


appointments and stopped taking him. She stopped taking herself to appointments. She

was unable to gain employment while he was in her care. She lost her apartment in June,

2016. She just has not been stable enough to be able to show that she was able to care

for him.”

Transcript at 59-60.

       {¶17} Crossen testified that appellant successfully completed a parenting

program and had successfully completed the parenting education component of her case

plan. Crossen testified that appellant’s visits with her son had not been consistent. She

testified that she did not feel that appellant had completed her case plan objectives overall

and had not resolved the problems that the agency identified in the complaint. Crossen

further testified that D.W.’s father was not on the plan because he had been incarcerated.

       {¶18} According to Crossen, appellant and the child’s father were both arrested in

August of 2016 due to a domestic dispute. At that time, D.W. was placed in his current

foster home prior to the agency filing the complaint. While the plan was for appellant to

get out of jail, get stable housing and obtain services to help her that did not happen.

       {¶19} Crossen testified that she did not believe that there was much of a parent-

child relationship between appellant and D.W. because appellant had not been around

much since he was born. She testified that appellant had left D.W. with various people for

the first 10 months of his life and that appellant “had minimal to no contact “with him.

Transcript at 67. When appellant got D.W. back into her care in March of 2016, he did not

really know who she was. Crossen testified that there was not a lot of hugging between

the two and that when appellant hugged D.W., he did not really reciprocate unless she

brought him toys or other items. At the end of the visits, D.W. would go running to his
Richland County, Case No. 19CA2                                                    9


foster mother and hug her. Crossen testified that D.W. did not call appellant mom but

called his foster parents mom and dad. D.W. had minimal to no contact with his biological

siblings who were in the legal custody of appellant’s mother and had no bond with them

or any other maternal relatives. When asked, Crossen testified that the custody of D.W.

had not changed since March of 2017 and that he had been in the custody of the agency

for at least 12 out of the last 22 months.

       {¶20} Crossen testified that the agency had investigated other relatives for

placement or custody of D.W. and that appellant’s mother, who had appellant’s other

children, would not take him and did not want to meet him. D.W.’s paternal grandmother

also did not want to take custody of him as long as appellant was working on her case

plan objectives, but had reported, after the motion for permanent custody was filed, that

she was willing to take legal custody of him. No home assessment had been completed.

However, Crossen testified that she did not believe that it would be appropriate to pursue

legal custody to the paternal grandmother since she had no bond or contact with D.W. for

the last two years. Crossen testified that she was concerned that the parenting would be

left to D.W.’s father and that it would not be appropriate.

       {¶21} Crossen testified that she believed that permanent custody was in D.W.’s

best interest because he had been passed around since he was born and was in the first

stable place. She voiced concerns over appellant’s ability to meet his medical concerns

and educational needs. Crossen testified that D.W. was well bonded with this foster family

and that he received consistent doctor visits and counseling and consistency in going to

preschool.
Richland County, Case No. 19CA2                                                   10


      {¶22} Crossen was further questioned about visitation between appellant and

D.W. She testified that appellant was not consistent and would come to a couple visits

and then miss several visits. She testified that it had been a period of at least 90 days

since appellant had contact with D.W.

      {¶23} On cross-examination, Crossen testified that she last had contact with

appellant in June of 2018. She further testified that Shaquita Miller, a non-relative who

previously had cared for D.W., had been considered for placement prior to the current

foster family, but that she was denied legal custody of D.W. due to a 2005 felonious

assault charge.

      {¶24} The Magistrate, in a Decision filed on November 28, 2018, recommended

that the parental rights of appellant and the child’s father be terminated and that

permanent custody of D.W. be granted to the RCCSB. No objections were filed. Pursuant

to a Judgment Entry filed on December 17, 2018, the trial court approved and adopted

the Magistrate’s Decision.

      {¶25} Appellant now raises the following assignment of error on appeal:

      {¶26} “I. THE TRIAL COURT’S CONCLUSION THAT PERMANENT CUSTODY

WAS WARRANTED IS NOT SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.”

                                            I

      {¶27} Appellant, in the case sub judice, argues that the trial court’s decision that

permanent custody was warranted was not supported by clear and convincing evidence.

Appellant specifically contends that the State failed to prove by clear and convincing

evidence that appellant does not meet the factors in R.C. 2151.414(E).
Richland County, Case No. 19CA2                                                       11

       {¶28} In the case sub judice, appellant did not object to the decision of the

magistrate. We note Juv.R. 40(D)(3)(b)(iv) states as follows: “Except for a claim of plain

error, a party shall not assign as error on appeal the court's adoption of any factual finding

or legal conclusion, whether or not specifically designated as a finding of fact or

conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that finding

or conclusion as required by Juv.R. 40(D)(3)(b).” To constitute plain error in a civil case,

the error must be “obvious and prejudicial” and “if permitted, would have a material

adverse effect on the character and public confidence in judicial proceedings.” Friedland

v. Djukic, 191 Ohio App.3d 278, 2010–Ohio–5777, ¶ 37 (8th Dist.). Plain error analysis is

limited and is to be applied with the utmost caution. State v. Tart, 8th Dist. Cuyahoga No.

76223, 2000 WL 739518.

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

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

hearing held pursuant to division (A) of R.C. 215.414, that it is in the best interest of the

child and any of the following apply:

       {¶30} (a) The child is not abandoned or orphaned* * *and the child cannot be

placed with either of the child's parents within a reasonable time or should not be placed

with the child's parents.

       {¶31} (b) The child is abandoned.

       {¶32} (c) The child is orphaned, and there are no relatives of the child who are

able to take permanent custody.
Richland County, Case No. 19CA2                                                        12


       {¶33} (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* * *.

       {¶34} (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.

       {¶35} As findings under R.C. 2151.414(B)(1)(a) and R.C. 2151.414(B)(1)(d) are

alternative findings, each is independently sufficient to use as a basis to grant the motion

for permanent custody. In re Daltoni, 5th Dist. Tuscarawas No. 2007 AP 0041, 2007–

Ohio–5805. The trial court found that RCCSB had temporary custody of D.W. for at least

twelve months of a consecutive twenty-two month period. Appellant does not challenge

this finding. This finding alone, in conjunction with a best interest finding, is sufficient to

support the grant of permanent custody. In re Calhoun, 5th Dist. Stark No.2008CA00118,

2008–Ohio–5458.

       {¶36} However, even if we consider appellant’s argument with regards to D.W.,

we find the trial court did not err in determining that D.W. could not and should not be

placed with appellant at this time or within a reasonable period of time.

       {¶37} Under R.C. 2151.414(E), the trial court must consider all relevant evidence

before making this determination. The trial court is required to enter such a finding if it

determines, by clear and convincing evidence, that one or more of the factors enumerated

in R.C. 2151.414(E)(1) through (16) exist with respect to each of the child's parents.

       {¶38} R.C. 2151.414 states, in relevant part, as follows:
Richland County, Case No. 19CA2                                                        13


          {¶39} (E) In determining at a hearing held pursuant to division (A) of this section

or for the purposes of division (A)(4) of section 2151.353 of the Revised Code 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 or for the purposes of division (A)(4) of section 2151.353 of the Revised

Code 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:

          {¶40} (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.

          {¶41} (2) Chronic mental illness, chronic emotional illness, intellectual disability,

physical disability, or chemical dependency of the parent that is so severe that it makes

the parent unable to provide an adequate permanent home for the child at the present

time and, as anticipated, within one year after the court holds the hearing pursuant to
Richland County, Case No. 19CA2                                                       14


division (A) of this section or for the purposes of division (A)(4) of section 2151.353 of the

Revised Code;

         {¶42} (3) The parent committed any abuse as described in section 2151.031 of

the Revised Code against the child, caused the child to suffer any neglect as described

in section 2151.03 of the Revised Code, or allowed the child to suffer any neglect as

described in section 2151.03 of the Revised Code between the date that the original

complaint alleging abuse or neglect was filed and the date of the filing of the motion for

permanent custody;

         {¶43} (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;

         {¶44} (5) The parent is incarcerated for an offense committed against the child or

a sibling of the child;

         {¶45} (6) The parent has been convicted of or pleaded guilty to an offense under

division (A) or (C) of section 2919.22 or under section 2903.16, 2903.21, 2903.34,

2905.01, 2905.02, 2905.03, 2905.04, 2905.05, 2907.07, 2907.08, 2907.09, 2907.12,

2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02,

2911.11, 2911.12, 2919.12, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, or

3716.11 of the Revised Code, and the child or a sibling of the child was a victim of the

offense, or the parent has been convicted of or pleaded guilty to an offense under section

2903.04 of the Revised Code, a sibling of the child was the victim of the offense, and the
Richland County, Case No. 19CA2                                                      15


parent who committed the offense poses an ongoing danger to the child or a sibling of

the child.

       {¶46} (7) The parent has been convicted of or pleaded guilty to one of the

following:

       {¶47} (a) An offense under section 2903.01, 2903.02, or 2903.03 of the Revised

Code or under an existing or former law of this state, any other state, or the United States

that is substantially equivalent to an offense described in those sections and the victim of

the offense was a sibling of the child or the victim was another child who lived in the

parent's household at the time of the offense;

       {¶48} (b) An offense under section 2903.11, 2903.12, or 2903.13 of the Revised

Code or under an existing or former law of this state, any other state, or the United States

that is substantially equivalent to an offense described in those sections and the victim of

the offense is the child, a sibling of the child, or another child who lived in the parent's

household at the time of the offense;

       {¶49} (c) An offense under division (B)(2) of section 2919.22 of the Revised Code

or under an existing or former law of this state, any other state, or the United States that

is substantially equivalent to the offense described in that section and the child, a sibling

of the child, or another child who lived in the parent's household at the time of the offense

is the victim of the offense;

       {¶50} (d) An offense under section 2907.02, 2907.03, 2907.04, 2907.05, or

2907.06 of the Revised Code or under an existing or former law of this state, any other

state, or the United States that is substantially equivalent to an offense described in those
Richland County, Case No. 19CA2                                                      16


sections and the victim of the offense is the child, a sibling of the child, or another child

who lived in the parent's household at the time of the offense;

       {¶51} (e) An offense under section 2905.32, 2907.21, or 2907.22 of the Revised

Code or under an existing or former law of this state, any other state, or the United States

that is substantially equivalent to the offense described in that section and the victim of

the offense is the child, a sibling of the child, or another child who lived in the parent's

household at the time of the offense;

       {¶52} (f) A conspiracy or attempt to commit, or complicity in committing, an

offense described in division (E)(7)(a), (d), or (e) of this section.

       {¶53} (8) The parent has repeatedly withheld medical treatment or food from the

child when the parent has the means to provide the treatment or food, and, in the case of

withheld medical treatment, the parent withheld it for a purpose other than to treat the

physical or mental illness or defect of the child by spiritual means through prayer alone in

accordance with the tenets of a recognized religious body.

       {¶54} (9) The parent has placed the child at substantial risk of harm two or more

times due to alcohol or drug abuse and has rejected treatment two or more times or

refused to participate in further treatment two or more times after a case plan issued

pursuant to section 2151.412 of the Revised Code requiring treatment of the parent was

journalized as part of a dispositional order issued with respect to the child or an order was

issued by any other court requiring treatment of the parent.

       {¶55} (10) The parent has abandoned the child.

       {¶56} (11) The parent has had parental rights involuntarily terminated with respect

to a sibling of the child pursuant to this section or section 2151.353 or 2151.415 of the
Richland County, Case No. 19CA2                                                          17


Revised Code, or under an existing or former law of this state, any other state, or the

United States that is substantially equivalent to those sections, and the parent has failed

to provide clear and convincing evidence to prove that, notwithstanding the prior

termination, the parent can provide a legally secure permanent placement and adequate

care for the health, welfare, and safety of the child.

       {¶57} (12) The parent is incarcerated at the time of the filing of the motion for

permanent custody or the dispositional hearing of the child and will not be available to

care for the child for at least eighteen months after the filing of the motion for permanent

custody or the dispositional hearing.

       {¶58} (13) The parent is repeatedly incarcerated, and the repeated incarceration

prevents the parent from providing care for the child.

       {¶59} (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.

       {¶60} (15) The parent has committed abuse as described in section 2151.031 of

the Revised Code against the child or caused or allowed the child to suffer neglect as

described in section 2151.03 of the Revised Code, and the court determines that the

seriousness, nature, or likelihood of recurrence of the abuse or neglect makes the child's

placement with the child's parent a threat to the child's safety.

       {¶61} (16) Any other factor the court considers relevant.

       {¶62} 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), paragraph three of the
Richland County, Case No. 19CA2                                                       18

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985).

“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.” Cross at 477. 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, 3

         {¶63} The Magistrate, in her Decision, found that R.C. 2151.414(E)(1), (E)(4), and

(E)(10) were applicable. As is stated above in detail, there was testimony that appellant

had failed continuously and repeatedly to substantially remedy the conditions causing

D.W. to be placed outside his home. There was testimony that she did not maintain

appropriate and stable housing or employment and went for periods of time exceeding 90

days before visiting with D.W. and that her visitation was not consistent.                 The

CASA/Guardian ad Litem in his report, stated that appellant has 13 eviction notices from

2005 through June of 2016. Moreover, appellant, who previously had four other children

removed from her care, had at times left D.W. with acquaintances for periods of time.

There was testimony that the caseworker had not had contact with appellant since June

of 2018 and did not know her current living situation and that her last known address was

vacant. Appellant also sporadically engaged in services despite having three different

assessments and as noted by the Magistrate “had failed consistently and repeatedly to

position herself to assume the responsibilities associated with full-time care of her child.”

The CASA/Guardian ad Litem noted in his report, that appellant had not completed any
Richland County, Case No. 19CA2                                                   19


substance abuse assessments or services and that she did not follow through with

counseling. The Magistrate, in her Decision, found that appellant had “failed to

consistently make herself available to the Court, her legal representative and her

caseworker.”

       {¶64} We note that appellant does not challenge the trial court’s best interest

finding.

       {¶65} Based on the foregoing, we find that the trial court’s decision is supported

by clear and convincing evidence and that appellant has not demonstrated plain error in

the findings of the court.

       {¶66} Appellant’s sole assignment of error is, therefore, overruled.

       {¶67} Accordingly, the judgment of the Richland County Court of Common Pleas,

Juvenile Division is affirmed.


By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.
