[Cite as In re J.B., 2020-Ohio-3351.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       ATHENS COUNTY


In re J.B.                                :     Case No. 20CA1

Adjudicated neglected and                 :     DECISION AND
dependent child                                 JUDGMENT ENTRY
                                :
______________________________________________________________________
                            APPEARANCES:

Ryan Shepler, Kernen & Shepler, LLC, Logan, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecutor, and Timothy L. Warren, Athens County
Assistant Prosecutor, Athens, Ohio, for appellee.
______________________________________________________________________
Hess, J.

        {¶1}     R.B. (“Mother”) appeals from a judgment of the Athens County Common

Pleas Court, Juvenile Division, that awarded permanent custody of her child to Athens

County Children Services (“ACCS”). Mother contends the evidence does not support

the court’s findings that ACCS did not have to use reasonable efforts to reunify the

family, that the child could not be placed with either parent within a reasonable time or

should not be placed with the parents, and that a grant of permanent custody to ACCS

was in the child’s best interest. Mother also claims that the court should have granted

the child’s maternal grandmother custody. However, after weighing the evidence and

all reasonable inferences, considering the credibility of the witnesses after according the

requisite deference to the trial court’s determinations, we conclude that in resolving

evidentiary conflicts, the court did not clearly lose its way or create a manifest

miscarriage of justice so that we must reverse its permanent custody award.            We

overrule Mother’s assignments of error and affirm the trial court’s judgment.
Athens App. No. 20CA1                                                                     2


                       I. FACTS AND PROCEDURAL HISTORY

       {¶2}    Mother and J.F. (“Father”) are the parents of J.B., who was born in

September 2015.      J.B. has cystic fibrosis, a progressive disease that causes thick

mucus to collect in the airways, resulting in difficulty breathing. Medical professionals

have recommended that at least twice a day, J.B. receive vest therapy where he spends

about 30 minutes in a vibrating vest to loosen mucus to clear airways. Most patients

with cystic fibrosis, including J.B., have pancreatic insufficiency, i.e., the pancreas does

not produce enzymes in the right way to allow the body to absorb nutrients to grow and

develop. J.B. takes nineteen daily medications, including enzymes and vitamins, that

are administered via tube or nebulizer. He struggles with eating and receives nutrition

via tube.

       {¶3}    In February 2019, ACCS filed a complaint asserting J.B. appeared to be

an abused, neglected, and dependent child. ACCS alleged it had information that

Mother was not complying with the recommendations of J.B.’s doctors or giving him

enough calories and that he had been admitted to Nationwide Children’s Hospital

(“NCH”) due to critical complications of cystic fibrosis and malnutrition, had gone into

cardiac arrest due to malnutrition, and was in a medically induced coma. ACCS

requested temporary custody but later amended its complaint to request permanent

custody. ACCS also moved for emergency custody during the pendency of the

proceedings.

       {¶4}    The court granted ACCS emergency custody of J.B. His maternal

grandmother, L.B. (“Grandmother”), moved to intervene, for grandparent visitation, and

for temporary or permanent custody. The court denied intervention and visitation and
Athens App. No. 20CA1                                                                    3


found the motion for custody premature because the adjudication had not yet occurred.

After the adjudicatory hearing, the court found J.B. was a neglected and dependent

child, and Grandmother renewed her motions.

      {¶5}   In November and December 2019, the court conducted a dispositional

hearing.   ACCS introduced medical and other records into evidence which indicate

Mother has a history of not following recommendations for J.B.’s care, resulting in

conflict between her and his medical providers. For instance, prior to December 2018,

she had not done the recommended vest therapy for over a year or given J.B.

prescribed, FDA approved enzymes for several months. The records indicate J.B. was

admitted to NCH on December 25, 2018 with “hypoxic respiratory distress, edema

secondary to hypoalbuminemia in the setting of moderate malnutrition due to medical

neglect.” His condition “[p]rogressed to respiratory failure requiring prolonged intubation

in the [pediatric intensive care unit], complicated by cardiac arrest * * *.”     He was

hospitalized for 92 days during which his medical team contacted ACCS.

      {¶6}   Kelly Sakellaris, a cystic fibrosis dietician, testified that on December 26,

2018, she did a consult for a nutrition assessment of J.B., and he exhibited signs of

malnutrition. His “whole body was swollen” due to “extreme fluid overload,” and his

protein levels were low. Sakellaris testified that based on what Mother told her about

J.B.’s diet, he was getting 900 to 1000 calories a day when he needed 1800 to 2200

calories a day at that time. Sakellaris testified that Mother’s use of unapproved enzymes

was a “huge concern” due to the lack of evidence-based research on their safety and

effectiveness and the fact that there were several months when J.B. had not been seen

at a cystic fibrosis center. She testified that J.B. made “great progress” in the hospital,
Athens App. No. 20CA1                                                                   4


and his protein levels normalized. She detailed his current nutrition plan and testified

that he was “growing as expected for a child his age and his gastrointestinal symptoms

have greatly improved over the past several months.”

      {¶7}   Dr. Katelyn Krivchenia, a pediatric pulmonologist at NCH, testified that she

was J.B.’s attending physician in September 2019 when he was hospitalized for a few

days due to a mild pulmonary exacerbation and rhino/enterovirus, i.e., the common

cold. Dr. Krivchenia reviewed records from J.B.’s recent hospital stays to formulate her

treatment plan. She testified that when J.B. was admitted in December 2018, he was

“almost dead.    He almost died.” She opined that J.B. was malnourished due to

insufficient enzymes or calories and that “there’s no reason that a child in this day and

age should be presenting to a hospital with such severe malnourishment. No reason

that they should go into cardiac arrest because of that malnourishment.         We have

medications. It was completely, completely avoidable.” Dr. Krivchenia testified that for

cystic fibrosis patients, a body mass index (“BMI”) over the 50th percentile is generally

an indicator of good health. Although J.B. “weighed a lot” in December 2018 and his

BMI was in the 80th percentile, he had “a lot of fluid weight,” and his albumin level, a

marker of the amount of protein in the body, was “severely low.” J.B. received

medication to expel the fluid, and at the time of his March 2019 discharge, his BMI was

in the 11th percentile. Dr. Krivchenia testified that when she treated J.B. in September

2019, his albumin level was normal, his BMI was in the 90th percentile, and it “seemed

like he was being very well-cared for and getting all of his treatments.” She explained it

is “very common” for cystic fibrosis patients to be hospitalized several days due to viral

illness and noted J.B. was also hospitalized in May 2019 due to pneumonia.
Athens App. No. 20CA1                                                                    5


      {¶8}   Arissa Nelson, an ongoing caseworker at ACCS, testified that she was

assigned to J.B.’s case in February 2019. When she met J.B., he was in a wheelchair

and barely spoke, but at the time of the dispositional hearing he was “a different kid”

and could run and say short sentences. Nelson opined that J.B. would not receive

proper care if returned to Mother or placed with Grandmother because Mother did not

agree with or follow cystic fibrosis protocols, Mother often blamed hospital staff “for the

events that have [led] us to today,” and “even through case planning meetings,” Mother

and Grandmother “agreed on [J.B.’s] care.” Nelson testified that Mother had been

verbally aggressive and abusive towards ACCS employees and was not allowed to go

to NCH appointments because hospital staff did not feel that would be productive.

      {¶9}   Gary Wolfgang, Ph.D., completed a psychological evaluation of Mother

and found “a pattern of emotional and subsequent behavioral dyscontrol in which

[Mother] engages in the display of anger, irritability, and disgust accompanied by

behavioral argumentativeness, highly opinionated statements * * *, insulting comments,

and profanity, among other negative traits.” He was “inclined to offer diagnoses

centered on a mood disorder that is closer to bipolar than unipolar and elements of a

personality disorder that contains multiple dysfunctional interpersonal elements.” Dr.

Wolfgang explained his evaluation “did not produce clear evidence one way or the other

as to how” Mother’s traits “manifested themselves in [her] day to day care of her child.”

The traits were “more relevant in describing and explaining her reactions to hospital

personnel and agency personnel once the case was underway.” He recommended

“psychotherapy and psychotropic medications” that were “frequent and ongoing for a
Athens App. No. 20CA1                                                                    6


considerable period of time” to reduce “reactivity and foster more cooperative

interpersonal traits and behaviors.”

       {¶10} Stephanie Blaine, a kinship caseworker at ACCS, testified that she looked

for relative placements for J.B. ACCS wanted to consider placement with a maternal

aunt in Michigan, but Mother opposed it. ACCS did not approve placement with

Grandmother. Although she did not have a criminal history or safety hazards in her

home, Blaine testified Grandmother’s interview raised concerns about her ability to care

for J.B. Grandmother told Blaine that she did not agree with cystic fibrosis protocols,

that J.B. had not been malnourished, and that medical personnel caused his cardiac

arrest. Grandmother also made statements indicating she and Mother made decisions

as a team.

       {¶11} Kylie Langstaff was J.B.’s foster mother from the time of his discharge in

March 2019 until August 2019. When she initially met J.B. prior to his discharge, he

“would scream all the time” during vest treatments. However, Langstaff testified that he

did not like hospital personnel, and with her help, J.B.’s behavior improved. Langstaff

testified that at her home, J.B. would sometimes “growl a little bit” about vest therapy

but otherwise did it without issue. His walking and speech improved, and he gained

weight. Langstaff stopped caring for J.B. because she had a high-risk pregnancy and

was tired of Mother making unfounded accusations about J.B.’s care.

       {¶12} Riann Sullivan became J.B.’s foster mother in August 2019. Sullivan

testified while in her care, J.B. has done vest therapy without issue, his speech has

improved, and he has started learning basic self-care tasks. J.B. had been vomiting

four or five times a day but that had resolved. Sullivan testified that J.B. was “thriving”
Athens App. No. 20CA1                                                                   7


under the “consistency and structure” in her home, had bonded with his foster family,

and could stay with them until another alternative was found.

      {¶13} Jenny Stotts, J.B.’s guardian ad litem, testified that after observing J.B. in

foster care, reviewing medical records and other documents, and interviewing

individuals connected to the case, she recommended that the court grant ACCS

permanent custody. Stotts testified that J.B. requires a “certain standard of care that’s

evidence based” and needs a caregiver who is “willing to follow through on the

standard” and “can coordinate his care and develop working relationships” with medical

providers. Stotts opined that J.B. was bonded with Mother and Grandmother, but they

could not meet his needs.

      {¶14} Grandmother testified that she had attended J.B.’s medical appointments

and knew Mother was non-compliant with some recommended protocols. Grandmother

knew doctors wanted J.B. to have vest therapy but claimed J.B. would scream “his head

off” during the treatment, and Mother did not have enough oxygen to “keep it up.”

Grandmother also knew J.B. was receiving an “alternative enzyme,” but testified that

Mother made the decisions about his care, and Grandmother followed Mother’s

instructions when she watched J.B. even though she did not agree with all of Mother’s

decisions. Grandmother testified that Mother has a history of gastrointestinal issues,

and in December 2018, Grandmother took care of J.B. intermittently because Mother

had food poisoning. When Grandmother returned J.B. to Mother on Christmas Eve, his

stomach was “[a] little bloated,” which she attributed to a constipation issue.

Grandmother testified that to her knowledge, Mother always gave J.B. more calories

than were recommended. Although Grandmother testified that she now knew J.B. had
Athens App. No. 20CA1                                                                   8


not been absorbing enough protein, she admitted that she had attributed his December

2018 hospitalization to issues caused by weight gain and blamed a doctor for his

cardiac arrest. Grandmother claimed that if she got custody, she would “follow protocol

to the letter.”

        {¶15} Mother testified that she made healthcare decisions for J.B., not

Grandmother. Mother testified that she did not think people should use medicine. She

stated, “I think you should live what life God gives you. Good or not good. Sick, happy,

healthy, sad, depressed. You live it. That’s it.” However, Mother testified that she

followed medical recommendations for the first year-and-a-half of J.B.’s life until she

“had enough,” performed her own research, and did what she wanted to do. Mother

testified that she did not do vest therapy because J.B. “would scream until he would turn

purple” and she “could not support him on 2 liters of oxygen in my home and that’s all I

had access to.” Mother admitted there was “a possibility” that her decisions, such as

her choice of enzymes, played a role in the December 2018 hospitalization, but claimed

J.B. was receiving the calories he needed, partially blamed a doctor for the

hospitalization, and blamed a doctor for J.B.’s cardiac arrest. Mother admitted that she

had repeatedly disregarded medical advice, but claimed that she would follow it to

regain custody of J.B. She also testified that she had taken an online parenting class

and anger management class and restarted counseling. She was not taking any

medications for mental health issues but testified that her counselor had not referred her

for a medication assessment. Mother testified that since losing custody of J.B., she had

been living with Grandmother or Mother’s boyfriend. Mother claimed that if she regained
Athens App. No. 20CA1                                                                    9


custody, she would get a house, and if Grandmother got custody, Mother was willing to

stop coming to her house.

       {¶16} The court denied Grandmother’s motions and granted ACCS permanent

custody. The court found ACCS had not made reasonable efforts to reunite Mother and

J.B. but did not have to because she repeatedly withheld medical treatment and

nutrition from him under R.C. 2151.419(A)(2)(b). The court found that J.B. presented at

NCH in December 2018 “as severely malnourished” and that he was “medically

neglected by his mother in spite of numerous efforts to educate and convince her of his

various specific needs; especially airway clearance and enzymes.” The case did not

present “a matter of legitimate differing opinions as to diagnosis or plan of care for some

random medical issue”; rather, J.B.’s cystic fibrosis required “a very specific regimen of

care involving precise schedule compliance each and every day.” The court found

ACCS did not have to make reasonable efforts to reunite Father and J.B. because

Father abandoned him under R.C. 2151.419(A)(2)(d).

       {¶17} The court found J.B. could not be placed with either parent within a

reasonable time or should not be placed with his parents. It found Father abandoned

J.B. for purposes of R.C. 2151.414(E)(10). Regarding Mother, the court examined R.C.

2151.414(E)(2), (8), (14), and (16) and discussed the factors “collectively as they are

intertwined,” stating:

       Mother very clearly is actively opposed to the specific, but necessary,
       standards of care for her son’s health. * * * While mother is comfortable
       speaking in medically relevant terminology, it remains unconvincing and
       unsupported by reliable medically recognized authority. Her fractured
       relationship with the specialized medical experts might be somewhat
       explained by findings and observations in Dr. Wolfgang’s report about her
       rigidity and the way her anger has often led to negative behaviors. It’s not
       necessary for the Court to find a specific link between mother’s mental
Athens App. No. 20CA1                                                                    10


       health concerns and her history of being J.B.’s sole custodian. There is
       such a body of evidence to establish that for whatever reasons mother is
       unwilling or unable to accept and adhere to the correct best medical
       advice * * *.

The court found that returning J.B. to Mother’s care would be irresponsible. The court

noted that “[e]ven under her attorney’s carefully guided direct examination [Mother] was

barely able to claim that if only she could have her son returned, she would listen to the

experts and follow their recommendations,” and “within the next couple of responses

she would reveal that she truly doesn’t believe that she’s been wrong about or

mishandled J.B.’s care.” Although Mother had restarted counseling, the court found that

“any acknowledgement of wrong doing [sic] or sincere commitment to accepting medical

direction is far from convincing.”

       {¶18} The court found it was in J.B.’s best interest to grant ACCS permanent

custody.   Regarding J.B.’s interactions and interrelationships with others, the court

found Mother and Grandmother had “always been in charge of all decisions regarding

the care J.B. did or did not receive” and “been his only direct care providers for practical

purposes.” J.B. had no siblings and was abandoned by Father, and Mother and J.B.’s

aunt had a “fractured relationship.” J.B. had “done well in both his specialized foster

placements.” The court also found J.B. was “far too young to have a meaningful and

informed opinion on custody, but we can assume that he loves his mother * * *.”

Regarding custodial history, the court found “J.B. has always lived with his mother with

only limited short term stays with his grandmother. Since the initiation of this case he

has continuously been in foster care.” The court also found “J.B. needs and deserves a

legally secure placement, and sadly that cannot be with his biological family. He needs

an adoptive family that will listen and adhere to his critically important treatment and
Athens App. No. 20CA1                                                                   11


daily care requirement[s].” The court found Grandmother “failed to distinguish herself

as a true independent decision maker to any degree that the Court could comfortably

trust that matters would not revert to the prior nightmare. In fact, as of our last hearing

date mother had no independent housing and was living primarily with her mother.” In

addition, the court found R.C. 2151.414(E)(8) and (10) applied to the best interest

analysis.

                            II. ASSIGNMENTS OF ERROR

      {¶19} Mother presents the following assignments of error:

      1. The trial court erred by failing to require ACCS to use reasonable
      efforts to reunify the family prior to filing its permanent custody motion.

             a. The trial court’s determination that [Mother] repeatedly withheld
             medical treatment and nutrition from the child is not supported by
             competent credible evidence.

             b. Athens County Children Services failed to make any efforts to
             reunify the family.

      2. The trial court erred in finding that “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.”

             a. The trial court found that [Mother’s] mental illness dictates that
             the child cannot or should not be placed with [Mother] within a
             reasonable time, but did not find that this condition could not be
             resolved within one year.

             b. The trial court erred by finding that [Mother] has repeatedly
             withheld medical treatment or food when she has the means to
             provide the treatment or food; and that she 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.

      3. The trial court erred in finding, by clear and convincing evidence, that
      granting permanent custody is in the child’s best interests.

      4. The trial court erred by denying [Grandmother’s] motion for custody.
Athens App. No. 20CA1                                                                  12



                               III. LAW AND ANALYSIS

                                A. Standard of Review

      {¶20} This court has explained:

              A reviewing court will not reverse a trial court’s judgment in a
      permanent custody case unless it is against the manifest weight of the
      evidence. See In re T.J., 4th Dist. Highland Nos. 15CA15 and 15CA16,
      2016-Ohio-163, ¶ 25. “To determine whether a permanent custody
      decision is against the manifest weight of the evidence, an appellate court
      must weigh the evidence and all reasonable inferences, consider the
      credibility of the witnesses, and determine whether in resolving evidentiary
      conflicts, the trial court clearly lost its way and created such a manifest
      miscarriage of justice that the judgment must be reversed and a new trial
      ordered.” Id. at ¶ 25, citing Eastley v. Volkman, 132 Ohio St.3d 328, 2012-
      Ohio-2179, 972 N.E.2d 517, ¶ 20. In reviewing evidence under this
      standard, we defer to the trial court’s determinations of matters of
      credibility, which are crucial in these cases, where demeanor and attitude
      are not reflected well by the written record. Eastley at ¶ 21; Davis v.
      Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997).

             In a permanent custody case the dispositive issue on appeal is
      “whether the [juvenile] court’s findings * * * were supported by clear and
      convincing evidence.” In re K.H., 119 Ohio St.3d 538, 2008-Ohio-4825,
      895 N.E.2d 809, ¶ 43 * * *. “Clear and convincing evidence” is “that
      measure or degree of proof which is more than a mere ‘preponderance of
      the evidence,’ but not to the extent of such certainty as is required ‘beyond
      a reasonable doubt’ in criminal cases and which will produce 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 syllabus; State ex rel. Pietrangelo v. Avon Lake,
      149 Ohio St.3d 273, 2016-Ohio-5725, 74 N.E.3d 419, ¶ 14. “[I]f the
      children services agency presented competent and credible evidence
      upon which the trier of fact reasonably could have formed a firm belief that
      permanent custody is warranted, then the court’s decision is not against
      the manifest weight of the evidence.” In re R.M., 2013-Ohio-3588, 997
      N.E.2d 169, ¶ 55 (4th Dist.).

In re C.S., 4th Dist. Pike No. 19CA899, 2019-Ohio-5109, ¶ 21-22.
Athens App. No. 20CA1                                                                   13


                                 B. Reunification Efforts

       {¶21} In the first assignment of error, Mother contends that ACCS made no

effort to reunify the family and that the trial court erred when it concluded ACCS did not

have to prove it made reasonable efforts to do so pursuant to R.C. 2151.419(A)(2)(b)

because the finding that she repeatedly withheld medical treatment and nutrition from

J.B. is not supported by competent, credible evidence. Mother asserts that children with

cystic fibrosis require “extensive and complicated medical care,” and “[e]ven in the best

of times * * * may have frequent hospital stays and have serious illnesses.” Mother

notes that while in foster care, J.B. lost two pounds, had vomiting issues, and was

hospitalized twice through no fault of his foster parents. She claims that the December

2018 hospitalization “was not the result of poor care” by her and was “typical of children

with cystic fibrosis.” Mother argues that even if she caused that hospitalization, there is

no evidence she withheld medical treatment or nutrition on multiple occasions. She

claims the “undisputed testimony was that J.B. was largely healthy from 2016 through

December 2018” and that the December 2018 hospitalization “coincided with [her]

illness.”

       {¶22} Generally, at a R.C. 2151.353 dispositional hearing at which the court

“continues the removal a child from the child’s home,” a public children services agency

has the burden to prove that it “has made reasonable efforts to prevent the removal of

the child from the child’s home, to eliminate the continued removal of the child from the

child’s home, or to make it possible for the child to return safely home.”            R.C.

2151.419(A)(1).   If “[t]he parent from whom the child was removed has repeatedly

withheld medical treatment or food from the child when the parent has the means to
Athens App. No. 20CA1                                                                    14


provide the treatment or food” and the parent has not “withheld medical treatment in

order 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,” the

court “shall make a determination that the agency is not required to make” those

reasonable efforts. R.C. 2151.419(A)(2)(b).

       {¶23} ACCS presented competent, credible evidence that would produce a firm

belief that Mother repeatedly withheld medical treatment and nutrition from J.B. Mother

admitted that after the first year-and-a-half of J.B.’s life, she repeatedly disregarded the

recommendations of his doctors. Mother was not giving J.B. the recommended vest

therapy. Mother also was not giving J.B. his prescribed, FDA approved enzymes and

was instead giving him enzymes that were not FDA approved and lacked evidence-

based research on their safety and effectiveness. Although Mother and Grandmother

claimed that J.B. was receiving the calories needed each day, the trial court was free to

reject this testimony, particularly given Sakellaris’s testimony to the contrary and other

evidence that J.B. was malnourished when he was admitted to NCH in December 2018,

such as his low albumin levels and low BMI following the loss of excess fluid weight.

Mother’s suggestion that the 92-day hospital stay was somehow typical for a child with

cystic fibrosis is undercut by Dr. Krivchenia’s testimony that J.B. “almost died” and that

there was no reason for a child to present to the hospital with “such severe

malnourishment” or to “go into cardiac arrest” because of it. Notably, once J.B. was

under the care of foster parents who followed medical advice, his nutritional status

improved and he was growing as expected for his age.
Athens App. No. 20CA1                                                                   15


       {¶24} The trial court’s finding that Mother repeatedly withheld medical treatment

and nutrition from J.B. for purposes of R.C. 2151.419(A)(2)(b) was not against the

manifest weight of the evidence. We overrule the first assignment of error.

                             C. Placement with the Parents

       {¶25} In the second assignment of error, Mother contends the trial court erred

when it found J.B. could not be placed with her within a reasonable time or should not

be placed with her. Mother asserts no evidence supports a R.C. 2151.414(E)(2) finding

that her mental illness could not be resolved within one year of the dispositional hearing.

She notes Dr. Wolfgang opined that with treatment, it was possible “she could calm

herself to the point that her ability to relate to medical and agency personnel in the

future would be greatly enhanced” and claims she was not given time to obtain

treatment.   Citing her arguments in the first assignment of error, Mother claims no

evidence supports a R.C. 2151.414(E)(8) finding that she repeatedly withheld medical

treatment and nutrition or a R.C. 2151.414(E)(14) finding that she is unwilling to provide

basic necessities. She also asserts that any withholding or unwillingness was “the

result of mental illness, which may have been resolvable within one year” of the

dispositional hearing.

       {¶26} The trial court may not commit a neglected or dependent child to the

permanent custody of a public children services agency under R.C. 2151.353(A)(4)

unless it determines “in accordance with division (E) of section 2151.414 of the Revised

Code that the child cannot be placed with one of the child’s parents within a reasonable

time or should not be placed with either parent * * *.” R.C. 2151.414(E) states that “[i]f

the court determines, by clear and convincing evidence,” that one or more of sixteen
Athens App. No. 20CA1                                                                   16


statutorily enumerated factors “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[.]” Id. The trial court examined the

following R.C. 2151.414(E) factors with respect to Mother:

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

      ***

      (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.

      ***

      (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.

      ***

      (16) Any other factor the court considers relevant.

      {¶27} The trial court’s determination that R.C. 2151.414(E)(8) applied is

supported by the same evidence detailed in Section III.B that supported the R.C.

2151.419(A)(2)(b) determination. Contrary to what Mother implies, R.C. 2151.414(E)(8)

does not require a finding that any mental illness that contributed to Mother’s decision to

repeatedly withhold medical treatment or nutrition from J.B. could not be resolved within

a year of the dispositional hearing. Because the determination that R.C. 2151.414(E)(8)
Athens App. No. 20CA1                                                                       17


applied is not against the manifest weight of the evidence, the trial court did not err

when it found J.B. could not be placed with Mother within a reasonable time or should

not be placed with Mother, and it is not necessary for us to evaluate the other R.C.

2151.414(E) factors the trial court examined with respect to her.          We overrule the

second assignment of error.

                               D. Best Interest of the Child

       {¶28} In the third assignment of error, Mother contends that the trial court erred

when it found a grant of permanent custody to ACCS was in the best interest of J.B.

Mother asserts J.B. is bonded with her and Grandmother and that they “are the only

guarantees of long-term stability” for him. Mother emphasizes the fact that J.B. had two

foster placements in a nine-month period. She asserts that J.B. had difficulty bonding

with his first foster mother and that even though J.B. may have bonded with his current

foster parents, that placement “has no promise of stability” because “the foster parents

are only willing to keep him until a long-term alternative arises.” Mother also challenges

the trial court’s finding that R.C. 2151.414(E)(8) applies to the best interest analysis.

       {¶29} In the fourth assignment of error, Mother contends the court should have

granted Grandmother’s motion for custody.            Mother asserts this is a “suitable

alternative” to permanently severing the family relationship because Grandmother is

“strongly bonded with J.B.,” has no criminal record, has a safe home, and testified about

her willingness to follow medical advice. Mother claims ACCS’s “uncorroborated

assumption” that Grandmother and Mother made decisions about J.B.’s care as a team

was contradicted by Grandmother’s testimony.
Athens App. No. 20CA1                                                                  18


      {¶30} The third and fourth assignments of error present related issues because

if a grant of permanent custody to the agency is in J.B.’s best interest, a grant of

custody to Grandmother necessarily is not. In re S.S.-1, 4th Dist. Athens No. 17CA44,

2018-Ohio-1349, ¶ 74. Therefore, we will consider these assignments of error together.

      {¶31} The trial court may not commit a neglected or dependent child to the

permanent custody of a public children services agency under R.C. 2151.353(A)(4)

unless it “determines in accordance with division (D)(1) of section 2151.414 of the

Revised Code that the permanent commitment is in the best interest of the child.”

      {¶32} R.C. 2151.414(D)(1) states:

      In determining the best interest of a child * * * the court shall consider all
      relevant factors, including, but not limited to, the following:

      (a) The interaction and interrelationship of the child with the child’s
      parents, siblings, relatives, foster caregivers and out-of-home providers,
      and any other person who may significantly affect the child;

      (b) The wishes of the child, as expressed directly by the child or through
      the child’s guardian ad litem, with due regard for the maturity of the child;

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

      (d) The child’s need for a legally secure permanent placement and
      whether that type of placement can be achieved without a grant of
      permanent custody to the agency;

      (e) Whether any of the factors in divisions (E)(7) to (11) of this section
      apply in relation to the parents and child.

No one factor has “greater weight or heightened significance.” In re C.F., 113 Ohio

St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶ 57. “Instead, the trial court considers the
Athens App. No. 20CA1                                                                   19


totality of the circumstances when making its best interest determination.” In re Z.M.,

4th Dist. Scioto No. 18CA3856, 2019-Ohio-2564, ¶ 24.

                    1. Interactions and Interrelationships of the Child

       {¶33} The record contains some evidence that J.B. was bonded with Mother and

Grandmother, who had been his caregivers. Mother does not challenge the trial court’s

finding that Father abandoned J.B. She also does not dispute the finding that she has a

fractured relationship with J.B.’s aunt, which presumably impacted J.B.’s ability to have

a relationship with her. In addition, evidence supports the trial court’s finding that J.B.

has done well in his specialized foster placements. His foster parents and medical

professionals testified to the progress he has made in those placements, and J.B.’s

current foster mother testified that he had bonded with his foster family.

                                  2. Wishes of the Child

       {¶34} As the trial court found, J.B. is too young to have a meaningful and

informed opinion on custody but presumably loves Mother.

                                   3. Custodial History

       {¶35} Before ACCS instituted this action, J.B. was in the custody of Mother and

occasionally stayed with Grandmother.       Since ACCS instituted this action, J.B. has

been in the custody of ACCS and in foster care. At the time of the permanent custody

hearing, J.B. had not been in the temporary custody of ACCS for twelve or more months

of a consecutive twenty-two month period.

                        4. Legally Secure Permanent Placement

       {¶36} We have generally interpreted the phrase “legally secure permanent

placement” to “mean a safe, stable, consistent environment where a child’s needs will
Athens App. No. 20CA1                                                                     20


be met.” In re M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793, ¶ 56. “A legally

secure permanent placement is more than a house with four walls. Rather, it generally

encompasses a stable environment where a child will live in safety with one or more

dependable adults who will provide for the child’s needs.” Id.

       {¶37} R.C. 2151.414 “does not make the availability of a placement that would

not require a termination of parental rights an all-controlling factor. The statute 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, ¶ 64. “Therefore,

courts are not required to favor relative * * * placement if, after considering all the

factors, it is in the child’s best interest for the agency to be granted permanent custody.”

S.S.-1, 4th Dist. Athens No. 17CA4, 2018-Ohio-1349, at ¶ 74.

       {¶38} Competent, credible evidence supports the trial court’s finding that J.B.’s

need for a legally secure permanent placement cannot be met by Mother or

Grandmother.     The record indicates that Mother has repeatedly disregarded cystic

fibrosis protocols. The trial court, which was in the best position to judge credibility, was

free to reject Mother’s testimony that she would follow medical advice if she regained

custody, particularly given her past history, which this court has recognized is “one of

the best predictors of future behavior.” Z.M., 4th Dist. Scioto No. 18CA3856, 2019-

Ohio-2564, at ¶ 33. The court was also free to reject Grandmother’s testimony that she

would follow medical advice if she got custody of J.B. Blaine testified that Grandmother

told her that she did not agree with cystic fibrosis protocols, and as the trial court

pointed out, Grandmother knew Mother’s approaches to airway clearance and enzymes

were contrary to the recommendations of medical experts, Grandmother had been
Athens App. No. 20CA1                                                                   21


complicit in Mother’s refusal to follow them, and at the time of the dispositional hearing,

Mother was living with Grandmother when not at Mother’s boyfriend’s home.

      {¶39} Mother’s suggestion that the record shows J.B.’s need for a legally secure

permanent placement cannot be achieved with a grant of permanent custody to ACCS

is not well-taken. Mother is correct that J.B. had two foster placements in nine months

and that it appears his current foster placement will not be permanent. However, ACCS

presented evidence that the first foster placement ended due to the foster mother’s

high-risk pregnancy and Mother’s own conduct, and J.B.’s current foster parents are

willing to continue acting in that capacity until ACCS finds an alternative. It is possible

that ACCS could facilitate a placement with J.B.’s aunt, but because of Mother’s

opposition, ACCS was unwilling to pursue that option without a grant of permanent

custody.

                      5. Factors in R.C. 2151.414(E)(7) to (E)(11)

      {¶40} The trial court found Mother repeatedly withheld medical treatment and

nutrition pursuant to R.C. 2151.414(E)(8), and Father abandoned J.B. pursuant to R.C.

2151.414(E)(10). We rejected Mother’s challenge to the R.C. 2151.414(E)(8) finding in

Section III.C, and she does not challenge the abandonment finding.

                            6. Totality of the Circumstances

      {¶41} Based on the foregoing, we conclude that the decision to deny

Grandmother’s motion for custody and grant ACCS permanent custody was not against

the manifest weight of the evidence. ACCS presented competent and credible evidence

upon which the trial court reasonably could have formed a firm belief that a grant of
Athens App. No. 20CA1                                                          22


permanent custody to ACCS was in the best interest of J.B. and that placement with

Grandmother was not. We overrule the third and fourth assignments of error.

                                 IV. CONCLUSION

      {¶42} Having overruled the assignments of error, we affirm the trial court’s

judgment.

                                                            JUDGMENT AFFIRMED.
Athens App. No. 20CA1                                                                23



                                   JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

       Any stay previously granted by this Court is hereby terminated as of the date of
this entry.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                   For the Court




                                   BY: ________________________________
                                       Michael D. Hess, Judge




                                 NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
