[Cite as In re R.S. , 2010-Ohio-2160.]




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




IN THE MATTER OF:

        R.S.,                                                CASE NO. 9-09-25

[TAMMY MARTIN -
                                                             OPINION
        APPELLANT].




                  Appeal from Marion County Common Pleas Court
                                  Juvenile Division
                           Trial Court No. 2007-AB-00036

                                         Judgment Affirmed

                              Date of Decision: May 17, 2010




APPEARANCES:

        Kevin P. Collins for Appellant

        James P. Luton and Megan K. Brady for Appellee

        Tim Roston, Guardian Ad Litem

        Larry Heiser for Father
Case No. 9-09-25


SHAW, J.

        {¶1} Appellant Tammy Martin (“Tammy”) appeals the June 19, 2009

Judgment of the Marion County Court of Common Pleas, Juvenile Division,

terminating her parental rights and granting permanent custody of her child, R.S.,

to Appellee Marion County Children Services Board (“MCCSB”).

        {¶2} On October 27, 2006, Tammy gave birth to R.S. while serving an

eleven-month prison sentence at the Marysville Reformatory for Women. Tammy

was permitted to remain with R.S. through the participation of a program which

allowed mothers to provide support for nutrition and build the immunity of the

child while imprisoned.            However, Tammy was subsequently involved in an

altercation with another inmate-participant which resulted in her removal from the

program. As a result, on March 16, 2007, R.S. was placed in the custody of

MCCSB because, at that time, the identity of the child’s father was unknown and

Tammy refused to disclose any contact information of her other relatives.

MCCSB placed R.S. in a foster-to-adopt1 home pursuant to an ex parte emergency

custody order.




1
  This label is somewhat of a misnomer in this instance. A foster-to-adopt home is simply a home in which
the parents have had the requisite training and education to be foster parents, and at the same time have
either completed or are in the process of completing the requisite training to be certified as an adoptive
home. The record indicates that at this time MCCSB’s goal was the reunification of R.S. and Tammy. In
fact, the MCCSB caseworker handling this case, testified that “[w]hen [R.S.] came into our care, it was
actually felt that it was going to be a very short-term situation until mom got out of prison and a quick
reunification, that it was just a temporary situation.” (Trans. p. 130, ln. 7-11).


                                                   -2-
Case No. 9-09-25


       {¶3} On March 20, 2007, the trial court approved MCCSB’s motion for

temporary custody and subsequently approved the proposed case plan on April 19,

2007. The case plan required Tammy to obtain stable housing by July 7, 2007—

within sixty days of her scheduled release from prison on May 16, 2007—and to

maintain such housing and basic utilities for at least three consecutive months. In

addition, the plan required Tammy to stabilize and maintain her mental health

condition diagnosed as bi-polar disorder. Specifically, the plan called for Tammy

to attend counseling, see a psychiatrist and take the appropriate medications

prescribed to stabilize her mental health.

       {¶4} Upon her release from prison, Tammy failed to maintain stable

housing.     Her living arrangements were, at best, sporadic residing at seven

different locations including jail during the remainder of 2007. Additionally, she

failed to maintain contact with MCCSB to inform the agency of her whereabouts.

Jerry Whaley, the MCCSB case worker handling Tammy’s case testified to the

following:

       It became clear through the summer when mom disappeared,
       had no contact with us, with her son, in fact, the times I’ve been
       able to have contact with her is when I found out she’s at Multi-
       County Jail, with the exception of a couple phone calls here or
       there or happenstance when I’ve come upon her and located her.
       Her lack of follow-through, not being forthright or honest about
       things when she’s been able to give information were of concern.

(Trial Trans., p. 130, .ln. 12-21).



                                         -3-
Case No. 9-09-25


       {¶5} Based in part on this concern, MCCSB dismissed the original

complaint and filed a new complaint, on June 25, 2007, alleging R.S. to be

dependent. The new complaint requested a continuation of MCCSB’s temporary

custody of R.S. and requested that Tammy receive a psychiatric evaluation. On

August 9, 2007, the adjudication hearing was held and the trial court determined

R.S. to be dependent.

       {¶6} On November 7, 2007, a Guardian ad litem (“GAL”) was appointed

on R.S.’s behalf. On January 10, 2008, MCCS filed a motion for permanent

custody stating that R.S. cannot or should not be placed with Tammy within a

reasonable time pursuant to R.C. 2151.414(B)(2).

       {¶7} On April 29, 2008, a hearing was held concerning MCCSB’s motion

for permanent custody.      At the hearing, it was discovered that Lee McGary

(“McGary”) may be the potential father of R.S. The hearing on MCCSB’s motion

was continued in order to conduct a paternity test. The test results confirmed

McGary to be the biological father of R.S. Counsel was then appointed for

McGary to represent his interests as R.S.’s father in this case.

       {¶8} Additionally, Tammy had not attended any of the scheduled

visitations with R.S. from July 2007 to May 2008. Tammy was again incarcerated

during October and November of 2008. From May to December of 2008, Tammy

began to exercise her visitation rights, attending half of the scheduled visits.



                                          -4-
Case No. 9-09-25


      {¶9} On December 18, 2008, the GAL filed his report recommending that

MCCSB’s motion for permanent custody be denied. In his report, the GAL stated

he believed R.S. could be placed with Tammy within a reasonable period of time.

On April 29, 2009, the matter was heard before the court. Several witnesses

testified, including Tammy, McGary, the GAL, and Jerry Whaley— the MCCSB

caseworker handling the case.     On June 19, 2009, the trial court entered its

Judgment granting MCCSB’s motion for permanent custody of R.S. Tammy

appeals from this judgment and asserts the following assignments of error.

                      ASSIGNMENT OF ERROR NO. I

      THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO
      PROVE CLEARLY AND CONVINCINGLY THAT IT WAS IN
      THE BEST INTERESTS OF R.S. TO BE PLACED IN
      APPELLEE’S PERMANENT CUSTODY, AND THAT [R.S.]
      COULD NOT BE PLACED WITH EITHER PARENT
      WITHIN A REASONABLE TIME

                      ASSIGNMENT OF ERROR NO. II

      THE DECISION OF THE FAMILY COURT IS CONTRARY
      TO THE MANIFEST WEIGHT OF THE EVIDENCE

      {¶10} For ease of discussion, we elect to address Tammy’s assignments of

error together. Tammy alleges that the findings made by the trial court to support

its grant of permanent custody of R.S. to MCCSB are not consistent with the

standard of clear and convincing evidence. Tammy further alleges that the court’s




                                       -5-
Case No. 9-09-25


grant of permanent custody to MCCSB is against the manifest weight of the

evidence.

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

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

Dist. Nos. 9-06-12, 9-06-13, 2006-Ohio-4841 citing In re Hayes (1997), 79 Ohio

St.3d 46, 48, 679 N.E.2d 680. The Supreme Court of Ohio has held that a parent

“must be afforded every procedural and substantive protection the law allows.” In

re Hayes, supra, quoting In re Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45.

        {¶12} Before a juvenile court may terminate parental rights and award

permanent custody of a child to a properly moving agency, it must find clear and

convincing evidence of both prongs of the permanent custody test: (1) that the

child is abandoned, orphaned, has been in the temporary custody of the agency for

at least 12 months of a consecutive 22-month period,2 or that the child cannot be

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

either parent, based on an analysis under R.C. 2151.414(E); and (2) that the grant

of permanent custody to the agency is in the best interest of the child, based on an

analysis under R.C. 2151.414(D). In re D.M., 2005-Ohio-6740 at ¶ 11 citing R.C.




2
  For the purposes of division (B)(1) of R.C. 2151.414, a child shall be considered to have entered the
temporary custody of an agency on the earlier of the date the child is adjudicated pursuant to section
2151.28 of the Revised Code or the date that is sixty (60) days after the removal of the child from the
home.


                                                 -6-
Case No. 9-09-25


2151.414(B)(1)(a) through (d) and (2); see also, In re William S. (1996), 75 Ohio

St.3d 95, 99, 661 N.E.2d 738.

       {¶13} “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 (1954), 161 Ohio St.

469, 477, 120 N.E.2d 118. Further, “[i]t is intermediate, being more than a mere

preponderance, but not to the extent of such certainty as is required beyond a

reasonable doubt as in criminal cases. It does not mean clear and unequivocal.”

Id., citing Merrick v. Ditzler (1915),91 Ohio St. 256, 110 N.E. 493. In Cross, the

Ohio Supreme Court further held:

       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. * * * The degree
       of proof required is determined by the impression which the
       testimony of the witnesses makes upon the trier of facts, and the
       character of the testimony itself. Credibility, intelligence,
       freedom from bias or prejudice, opportunity to be informed, the
       disposition to tell the truth or otherwise, and the probability or
       improbability of the statements made, are all tests of testimonial
       value. Where the evidence is in conflict, the trier of facts may
       determine what should be accepted as the truth and what should
       be rejected as false.

Cross, 161 Ohio St. at 477-478, 120 N.E.2d 118 (internal citations omitted). Once

the clear and convincing standard has been met to the satisfaction of the trial court,

“the reviewing court must examine the record and determine if the trier of fact had



                                         -7-
Case No. 9-09-25


sufficient evidence before it to satisfy this burden of proof.” In re Adoption of

Holcomb (1985), 18 Ohio St.3d 361, 368, citing Cross, supra. “The determination

of the [trial] court should not be overturned unless it is unsupported by clear and

convincing evidence.” In re Adoption of Holcomb, supra.

       {¶14} In analyzing the first prong of the permanent custody test, we note

that the trial court must determine, by clear and convincing evidence, whether any

of the subsections of 2151.414(B) have been met. In the present case, MCCSB’s

motion for permanent custody alleged that R.S. cannot or should not be placed

with either parent within a reasonable time pursuant to R.C. 2151.414(B)(2).

       {¶15} Revised Code Section 2151.414(E) sets forth the elements necessary

to satisfy an R.C. 2151.414(B)(2) determination that the child cannot or should not

be placed with his parents within a reasonable time and states, in pertinent part:

       In determining * * * 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, * * * that one or more of the following exist as to each
       of the child’s parents, the court shall enter a finding that the
       child cannot be placed with either parent within a reasonable
       time or should not be placed with either parent:

       (1) Following the placement of the child outside the child's
       home and notwithstanding reasonable case planning and diligent
       efforts by the agency to assist the parents to remedy the
       problems that initially caused the child to be placed outside the
       home, the parent has failed continuously and repeatedly to
       substantially remedy the conditions causing the child to be
       placed outside the child's home. In determining whether the


                                         -8-
Case No. 9-09-25


       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.
       ***
       (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;
       **
       (16) Any other factor the court considers relevant.

R.C. 2151.414(E); see also In re Schaffer, 111 Ohio St.3d 498, 503, 2006-Ohio-

5513, 857 N.E.2d 532.

       {¶16} With respect to this determination the trial court made eleven

specific findings:

       As to the mother, Tammy Martin, the evidence is clear and
       convincing that she is incapable of caring for of raising the child.
       The following testimony supports this finding:

       (1) Mother has had an extensive criminal history. The child
       was born while Mother was incarcerated at Marysville
       Reformatory for Women.

       (2) Mother never maintained stable and permanent housing.
       Following her release from Marysville Reformatory for Women
       May 16, 2007, she lived at seven different locations for the rest of
       2007. She also was in the Multi-County Jail in Marion in
       September, 2007 and again in March of 2008. The caseworker
       testified that many times during the Case Plan, he didn’t know
       how to reach Mother.

       (3) In May, 2008 Mother tested positive for cocaine.


                                       -9-
Case No. 9-09-25



        (4) While incarcerated in October-November, 2008, Mother
        wrote a letter to Children’s Services requesting visitation [on]
        November 12, 2008, the date of her release from jail. Mother
        failed to show on the date requested.

        (5) Cindy Wall, Licensed Independent [Chemical Dependency]
        Counselor, testified that Mother was cocaine and marijuana
        dependent.

        (6) Mother testified that when she was released from prison,
        she felt it would be best if she didn’t visit the child. She testified
        she “didn’t feel like it.”

        (7) Mother has never had long term employment, and had not
        had a job since 2006 before she went to prison.

        (8) Mother’s visitation with child was sporadic.

        (9) Mother failed to follow the case plan in that she failed to
        attend counseling and take medication as prescribed.

        (10) Mother has been diagnosed with a bi-polar disorder.

        (11) Mother has been involved with domestic violence with a
        former boyfriend.3

(J.E., Jun. 19, 2009, p. 2-3).

        {¶17} Based on the excerpt above, it is evident that the trial court made

findings specifically touching on R.C. 2151.414(E)(1) and (4).                          As for R.C.

2151(E)(1), the court found that Tammy had failed to comply with the case plan

which required that she maintain her own caseworker-approved housing, including



3
 The record indicates that the domestic violence actually occurred with Tammy’s current live-in boyfriend
with whom she still resides.


                                                 -10-
Case No. 9-09-25


no less than electric, water, and an approved source of heat for no less than three

consecutive months; that she report any change of residence to the caseworker

within 72 hours; that she will attend all counseling sessions as established by her

counselor/therapist and follow all recommendations of her counselor/therapist;

that she attend all appointments with her psychiatrist as established and/or

recommended by the psychiatrist or counselor/therapist; she will take all

medications prescribed to her by a medical doctor and/or her psychiatrist in the

manner it is prescribed; (i.e. dose and frequency).

       {¶18} The record provides ample evidence to support the trial court’s

findings that Tammy failed to continually and repeatedly comply with the case

plan to substantially remedy the conditions which resulted in R.S.’s removal from

Tammy’s custody.      For example, during the year following her release from

prison, when the case plan was in effect, Tammy was charged and convicted of

eight misdemeanor crimes including: two counts of disorderly conduct, three

counts of theft, one count of complicity to theft, one count of criminal trespass and

one count of unauthorized use of a motor vehicle. (MCCSB’s trial exhibits 4(b)-

(j)). Tammy’s repeated pattern of engaging in unlawful conduct resulted in her

spending more time in jail. This further prevented her from being able to establish

and maintain stable housing for at least three consecutive months pursuant to the

case plan.



                                        -11-
Case No. 9-09-25


        {¶19} Furthermore, the record provides considerable evidence that Tammy

failed to make any efforts to stabilize her mental health as required by the case

plan.    Tammy was diagnosed with bi-polar disorder as a teenager.                              MCCSB

provided Tammy with transportation vouchers so that she could attend counseling

sessions to obtain the prescription medications necessary for the stabilization of

her bi-polar disorder. Tammy attended two sessions—one in June and one in July

of 2007—with a counselor, Cindy Wall, at the Marion Area Counseling Center

who testified at the hearing.             After completing an initial intake interview of

Tammy, Wall recommended a minimum of intensive outpatient level of care

relating to Tammy’s substance abuse and a mental health assessment to determine

the appropriate medications to be prescribed to Tammy as a course of treatment

for her bi-polar disorder. Wall testified that a full intake of Tammy was never

completed because Tammy failed to return to the Counseling Center after the

second session.4

         {¶20} As for R.C. 2151.414(E)(4), the court found that Tammy failed to

consistently attend scheduled visits with R.S., characterizing her visitation as

“sporadic.” Further, the court found that in one instance Tammy specifically

arranged a visitation with R.S.; however she failed to show at the location on the


4
  Tammy, for her part, testified that she was unable to attend the counseling sessions because the sessions
only occurred from 2:00 to 4:00 and operated on a first-come, first-served basis. She further explained that
the bus stopped running at 4:30 and she was afraid that her session may not be finished before the last bus
ran and thus, her fear of being stranded at the center prevented her from continuing with the counseling.


                                                   -12-
Case No. 9-09-25


requested date. The record also indicates that Tammy did not exercise visitation

with R.S. for ten months from July 2007 to May 2008. At a hearing held on

December 11, 2008, the caseworker testified that Tammy had exercised only

sixteen of the thirty-one opportunities that she had to visit with R.S. Furthermore,

the record indicated that Tammy failed to make any contribution to the court-

ordered child support obligation.

       {¶21} McGary, R.S.’s biological father, also testified that he thought it

would best for R.S. to remain in the foster home where he had become accustomed

to living. McGary explained that his age, of 64-years-old, played a significant role

in his stated position regarding his custody of R.S. McGary further stated that he

wanted to be a part of R.S.’s life via visitation with R.S. at his foster home, but did

not think it was best for R.S. for him to retain parental rights or custody.

       {¶22} Based on the foregoing, we conclude that the trial court’s findings

support the trial court’s determination by clear and convincing evidence that R.S.

cannot or should not be placed with either Tammy or McGary within a reasonable

time and that such a determination was not against the manifest weight of the

evidence. See In re Schaefer, 111 Ohio St.3d at 504 (conducting a similar review

of the R.C. 2151(E)(1),(4) factors).       We note that Tammy contends that this

determination was not supported by clear and convincing evidence because the

trial court did not specifically state the finding. Instead, the court stated:



                                          -13-
Case No. 9-09-25


       The Court cannot accept this recommendation as Mother has
       overwhelmingly demonstrated a lack of commitment to both her
       life style and her child, and additional time will not save or help
       Mother.

       {¶23} As this Court has stated previously, “the failure of the trial court to

use the statutory language ‘the child cannot be placed with either of his parents

within a reasonable time or should not be placed with his parents’ is not a per se

violation of the statutory criteria as long as the judgment entry granting permanent

custody supports such conclusion.” In re K.M, 3rd Dist. Nos. 9-09-29, 9-09-30,

2009-Ohio-6719,¶ 14 citing In re Curtis, 2000-Ohio-1725 *4. Although we note

that, while not expressly required by the statute, the better practice would be for

the trial court to enter a finding that more closely follows the language provided in

the statute. However, the absence of the statutory language does not vitiate the

trial court’s findings in this case.

       {¶24} As for the second prong of the permanent custody test, in

determining the best interest of a child, a trial court is to consider all relevant

factors, including, but not limited to, the five under R.C. 2151.414(D)(1) which

include:

       (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;




                                        -14-
Case No. 9-09-25


       (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 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.

       {¶25} Furthermore, this Court has held “that in rendering its judgment, the

trial court must either specifically address each of the required considerations set

forth in R.C. 2151.414(D) in its judgment entry, or otherwise provide some

affirmative indication in the record that the court has considered the specific

factors listed in R.C. 2151.414(D).” In re D.H., 3d. Dist. No. 9-06-57, 2007-Ohio-

1762, ¶21.

       {¶26} In the instant case, the trial court expressly found that it would be in

R.S.’s best interests to be placed in the permanent custody of MCCSB pursuant to

R.C. 2151.414. Moreover, the trial court provided an affirmative indication that it



                                        -15-
Case No. 9-09-25


considered the statutory factors listed in R.C. 2151.414(D)(1). Specifically, the

trial court addressed the GAL’s report, filed on the behalf of two-year-old R.S., in

its judgment entry granting permanent custody to MCCSB and stated:

       The Guardian Ad Litem recommends that the Motion of the
       Marion County Children’s Services be denied. The Guardian
       Report recognizes the problems Mother has with her life, i.e—
       lack of employment; no stable housing; many incarcerations and
       legal criminal problems and illegal drug abuse. The Guardians’
       only basis for his recommendation is that Mother should be
       given more time to comply. The Court cannot accept this
       recommendation as Mother has overwhelmingly demonstrated a
       lack of commitment to both her life style and her child, and
       additional time will not save or help Mother.

(J.E., Jun.19, 2009, p.3).

       {¶27} In addition to filing his report, the GAL also testified as to the basis

of his recommendation.       Specifically, the GAL believed that R.S. could be

returned to Tammy’s custody within a period of six months or less provided that

she takes certain steps which include the following: (1) complete a mental health

and drugs and alcohol assessment; (2) comply with any recommended counseling;

(3) take medication as prescribed; and (4) have more extensive unsupervised

parenting time with R.S. (GAL report, p.9). With the exception of the fourth step,

each of the steps listed above were already included in the case plan with which




                                        -16-
Case No. 9-09-25


Tammy failed to comply.5 As for the fourth step, the GAL based his assessment

on the interactions between Tammy and R.S. that he had watched via recordings

made by MCCSB. However, the GAL testified that he did not personally observe

Tammy with R.S., and that he only had one encounter with R.S. which involved a

meeting at a local church with R.S. and his foster mother.

        {¶28} In the past we have stated the weight to be given to a guardian ad

litem report is always within the prerogative of the trial court. However, when the

trial court renders a decision which goes against the specific recommendation of

the guardian ad litem, the trial court must at least address the reasons for doing so.

In re D.H., 3d. Dist. No. 9-06-57, 2007-Ohio-1762, ¶22. Here, the trial court

explicitly stated its reasons for not following the recommendations contained in

the GAL report. Furthermore, the testimony elicited before the court provides

ample support of the trial court’s final determination and as such, we conclude that

the trial court’s finding that it would be in R.S.’s best interest to be placed in the

permanent custody of MCCSB was supported by clear and convincing evidence

and was not against the manifest weight of the evidence.

        {¶29} Further, we note that the dissent contends that the trial court’s




5
   The record indicates that Tammy initially had unsupervised, off-site, visitation with R.S. However, a
series of no-calls/no-shows on scheduled visitation dates and Tammy’s refusal to do a drug screen at
MCCSB’s request resulted in a modification of the visitations to be supervised and done at the site of the
agency. It was not until May of 2008 that Tammy became more consistent in her visitations with R.S. by
attending half of the scheduled visits.


                                                  -17-
Case No. 9-09-25


judgment entry fails to comply with our prior case law because the trial court

states it considered R.C. 2151.414—rather than stating R.C. 2151.414(D)—when

it determined that it is in R.S.’s best interest to grant permanent custody to

MCCSB. In support of its contention, the dissent primarily relies on the first

clause in our holding in In re D.H., which states that “in rending its judgment the

trial court must either specifically address each of the required considerations set

forth in R.C. 2151.414(D) in its judgment entry.…”           However, the dissent

overlooks the language contained in the same sentence which states a second

alternative “or otherwise provides some affirmative indication in the record that

the court has considered the specific factors listed in R.C. 2151.414(D).”

       {¶30} By overlooking this specific language, the dissent essentially finds

that unless a judgment entry granting permanent custody specifically references

Division (D), the judgment of the trial court must be reversed regardless of the

findings the court has made after providing some affirmative indication that it

considered the proper statutory requirements. In doing so, the dissent cites a

number of cases previously decided by this Court to support its assertion.

However, none of them stand for this proposition and each is readily




                                       -18-
Case No. 9-09-25


distinguishable from the case sub judice.6

         {¶31} Rather, the present case falls squarely within this Court’s decision in

In the Matter of Kayden Haller, 3rd Dist. No. 16-08-16, 2009-Ohio-545. In that

case, we found that the trial court’s statement in its judgment entry that it

“considered the factors set forth in Section 2151.414 of the Ohio Revised Code[,]”

coupled with its findings of fact provided some affirmative indication that it

properly considered the factors of Division (D), despite the fact that the court did

not specifically reference its finding of fact to the applicable R.C. 2151.414(D)

factors. Id. at ¶ 15.

         {¶32} Here, not only did the trial court expressly state that it considered

R.C. 2151.414 in its judgment entry when it made its best interest determination,

but the trial court also provided an affirmative indication that it considered R.C.

2151.414(D)(1) when it discussed the GAL’s report in the same judgment entry.

Accordingly, we find that the trial court fully complied with our prior case law in

rendering its decision with respect to the best interest factors in R.C. 2151.414(D)

and as such we find the trial court’s determination with regard to this finding was



6
  In In re D.H. we reversed the trial court’s judgment because even though the trial court made a number of
factual findings, none of those findings demonstrated that the court had considered the factors enumerated
in R.C. 2151.414(D). Likewise, in In re McMillin, we reversed the grant of permanent custody because the
trial court made no indication in its judgment entry that it considered any statutory factors listed in R.C.
2151.414. In both In re Matthews and In re Robinson we affirmed the trial court’s judgment to grant
permanent custody because each respective judgment entry discussed specific factors listed in R.C.
2151.414(D). Finally, our analysis In re Lawson focused on the application of R.C. 2151.414(E) and thus
in not relevant to the present discussion.


                                                   -19-
Case No. 9-09-25


proper.

       {¶33} Based on the foregoing, both of Tammy’s assignments of error are

overruled and the judgment granting permanent custody of R.S. to MCCSB is

affirmed.

                                                                Judgment Affirmed

PRESTON, J., concurs.

/jlr




WILLAMOWSKI, P.J., dissents.

       {¶34} I dissent from the majority for the following reason.              The

termination of parental rights affects a fundamental right of the parents to raise

their own children.    This court has repeatedly held that the trial court must

consider each and every factor set forth in R.C. 2151.414(D).

       [I]n our view, it is not sufficient for the trial court to simply rely
       on the appellate court to review the factual record or narrative
       and then make the necessary inferences to determine whether
       the trial court must have considered each of the required
       statutory factors.

       Accordingly, we hold that in rendering its judgment, the trial
       court must either specifically address each of the required
       considerations set forth in R.C. 2151.414(D) in its judgment
       entry, or otherwise provide some affirmative indication in the
       record that the court has considered the specific factors listed in
       R.C. 2151.414(D).


                                       -20-
Case No. 9-09-25



In re D.H., 3d Dist. No. 9-06-57, 2007-Ohio-1763, ¶20-21.           See also In re

McMillin, 3d Dist. No. 9-06-59, 9-06-60, 2007-Ohio-2046; In re Robinson, 3d

Dist. No. 1-08-24, 2008-Ohio-5311; In re Matthews, 3d Dist. No. 9-07-28, 9-07-

29, 9-07-34, 2008-Ohio-276; and In re Lawson, 3d Dist. No. 9-06-67, 2007-Ohio-

4939. The judgment entry in this case does not indicate that the trial court

considered the specific statutory factors in question. I agree with the majority that

there are numerous facts on the record from which the trial court could address

the factors. However, the trial court did not do so. Instead, this court is doing

exactly what it has previously said it should not do. The majority is sifting

through the evidence to find facts to support the conclusions of the trial court and

relying on the trial court’s statement that it considered the GAL’s report which

touched on some of the factors and from which the trial court reached a different

conclusion. The majority also points to the GAL’s testimony concerning the

factors in R.C. 2151.414(E), all of which was before the trial court. By piecing

together parts of the testimony and inferring conclusions from them, they

conclude that this is “good enough.” The termination of parental rights affects a

substantial right and is not to be taken lightly. “Good enough” should not be

sufficient for terminating a substantial right. The statute sets forth five factors

that shall be considered by the trial court in R.C. 2151.414(D). The trial court

should be required in these cases to clearly comply with the statutes and not rely


                                        -21-
Case No. 9-09-25


on this court to infer that they did so by searching the record for support. For this

reason, I would follow our prior rulings, reverse the judgment of the trial court

and remand it for further proceedings.




                                         -22-
