[Cite as In Re S.S., 2018-Ohio-2790.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY


                                           IN RE: S.S.
                               ALLEGED DEPENDENT CHILD



                        OPINION AND JUDGMENT ENTRY
                                        Case No. 18 MA 0004


                                 Civil Appeal from the
            Court of Common Pleas, Juvenile Division of Mahoning County, Ohio
                                Case No. 2015 JC 197

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Cheryl L. Waite, Judges.


                                           JUDGMENT:
                                             Affirmed


Atty. Lori Shells Simmons, 222 West Federal Street, 4th Floor, Youngstown, Ohio
44503, for Appellee and

Atty. Rhonda Santha, 6401 State Route 534, West Farmington, Ohio 44491, for
Appellant.

                                        Dated: June 29, 2018
                                                                                      –2–




Bartlett, J.

       {¶1}    This is an expedited appeal by natural mother-Appellant, B.S., from the
trial court’s December 8, 2017 judgment entry which terminated her parental rights and
granted permanent custody with the power of adoption to Mahoning County Children
Services Board (MCCSB). The issues this court must address are 1) whether the trial
court violated Appellant’s right to due process of law by failing to appoint her a separate
psychological expert to assist her in rebutting Appellee’s psychological testimony; 2)
whether the trial court’s December 8, 2017 judgment was against the manifest weight of
the evidence in its factual finding that Appellant’s mental health was so severe as to
disable her parenting of minor child; and 3) whether the trial court incorrectly used the
preponderance of evidence standard of proof instead of the required clear and
convincing standard for termination of parental rights findings.
       {¶2}    For the following reasons, Appellant’s three assignments of error are
without merit. Accordingly, the judgment of the juvenile court is affirmed.
                             Facts and Procedural History
       {¶3}    On February 11, 2015, the minor child at issue was placed in the care of
Appellee-MCCSB pursuant to Ohio Juvenile Rule 6 following allegations that the
Appellant had thrown the minor child twice into his crib. At the time Appellant and the
minor child were residing with maternal grandparents when a domestic dispute occurred
between Appellant and maternal grandfather, resulting in the removal of the child from
the home.
       {¶4}    On March 13, 2015 a case plan was established that indicated that
Appellant had a history of substance abuse and mental health concerns. Appellant did
not have any income at that time, and was residing with her parents, where she could
not remain long term. There had been domestic violence between Appellant and her
parents, as well as Appellant and her estranged husband. Appellant reportedly threw
her son into his crib during a fit of anger which led to the removal of the child. Pursuant
to the Case Plan Appellant was required to: complete a psychological evaluation;
complete a mental health assessment and follow any and all recommendations of the

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treatment provider; complete parenting classes at MCCSB; complete alcohol and other
drug (AOD) assessment, following all recommendations; submit to random drug
screens on request; and provide safe and stable housing.
       {¶5}   Trial testimony established that the minor child was ill for the first several
months while in foster care, with diagnoses including RSV, viral bronchiolitis, ear
infections, and other viral infections. The minor child was hospitalized in April 2015 due
to respiratory problems associated with viral infection. The minor child subsequently
had tubes put in his ears. He also had his tongue clipped on June 24, 2015, and
showed progress with eating and speech following the surgery.
       {¶6}   On July 6, 2015 a domestic violence incident occurred between Appellant
and maternal grandmother, resulting in Appellant’s incarceration.
       {¶7}   On August 3, 2015, the Juvenile Court conducted an adjudicatory hearing.
For said hearing, Appellant was transported from county jail to the court due to the fact
that she was incarcerated on the domestic violence charge against maternal
grandmother as the alleged victim. Additionally, she was serving time for a probation
violation on an assault charge from 2013. At said hearing, Appellant stipulated to an
adjudication of dependency, therefore, the minor child was adjudicated dependent by
the juvenile court.
       {¶8}   On September 1, 2015, Appellant was discharged from jail and went to
Turning Point Crisis Unit from September 2, 2015 to September 9, 2015.
       {¶9}   On September 14, 2015, Appellant was “pink-slipped” to St. Elizabeth
Hospital. Appellant returned to Turning Point Crisis Center upon discharge.
       {¶10} On November 10, 2015, MCCSB filed its first Motion to Extend Temporary
Custody, noting that Appellant had not made any significant or measurable progress on
her case plan. MCCSB intended to move for permanent custody if Appellant did not
show progress on her case plan.         MCCSB stated that Appellant was required to:
engage in mental health treatment and be able to show she is complying with treatment;
complete an AOD assessment and follow recommendations of that assessment;
complete a psychological evaluation with Dr. Harvey Kayne; establish safe and
appropriate housing; demonstrate that she has learned skills necessary to care for a
child with special medical needs by utilizing those skills during regular visits; complete
parenting classes; and visit with the child on a regular basis.

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       {¶11} In January 2016 Appellant moved into a home with her boyfriend in
Lowellville. The home was in need of repairs to make it safe for the minor child.
       {¶12} On January 21, 2016, Appellant completed an assessment at Neal
Kennedy Recovery Center.         The assessment recommended Intensive Outpatient
treatment for Appellant.
       {¶13} On January 26, 2016 the juvenile court conducted a hearing on MCCSB’s
Motion to Extend Temporary Commitment.              The juvenile court determined that
reasonable efforts were made to prevent the need for placement and/or make it
possible for the child to return home and/or finalize the permanency plan that is in
effect. The juvenile court further noted that reasonable and diligent efforts were made
by MCCSB to reunify Appellant and child. The efforts included: Appellant was granted
the opportunity to complete parenting classes in five different series rather than the
usual three; caseworker had attempted to assist Appellant with mental health and
substance abuse treatment; Appellant was incarcerated during some of the time in
question on a domestic violence charge and probation violations; Appellant was
hospitalized twice at in-patient psychiatric facilities; and caseworker was sensitive to the
absences and tried to work around them to assist Appellant.
       {¶14} On March 19 & 20, 2016 Appellant had positive urine tests for alcohol and
cocaine.
       {¶15} Appellant entered the Neal Kennedy Recovery Clinic (NKRC) for a 28-day
in-patient program which began April 22, 2016, and, thereafter, stepped down to an
intensive outpatient program. However, Appellant was discharged from the intensive
outpatient program because NKRC determined she was in need of mental health
treatment before she could benefit from AOD treatment.
       {¶16} On April 13, 2016, MCCSB filed a Motion to Modify Temporary
Commitment to Permanent, alleging that the minor child had been in the temporary
custody of MCCSB for twelve or more months of a consecutive twenty-two month
period, and that it was in the best interest of the minor child to grant permanent custody
of the child to the agency. The matter was scheduled for hearing on June 30, 2016.
       {¶17} At the June 30, 2016 hearing, counsel for Appellant orally moved for a
continuance to allow Appellant time to complete her case plan, indicating that Appellant
had obtained a psychological assessment at Turning Point in the week prior to the

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hearing.    Counsel further argued that Appellant had been subjected to multiple
psychological evaluations. The juvenile court noted that some of the evaluations either
were initiated by Appellant or were in response to orders from other courts concerning
Appellant’s criminal charges.     The juvenile court further stated that the current
psychological evaluation conducted at Turning Point was necessary because Appellant
failed or refused to engage in meaningful counseling, and must start the process again
with an evaluation. Nonetheless, the juvenile court continued the trial to September 15,
2016.
        {¶18} At the trial on September 15, 2016, counsel for Appellant orally moved for
a continuance for the reason that the Guardian ad Litem did not timely file a report prior
to the hearing. The juvenile court continued the trial to November 14, 2016.
        {¶19} MCCSB withdrew the pending action upon realization that the two
continuances extended beyond the time limits for the permanent custody requirements,
and the failure to properly serve the father with hearing notice. MCCSB refiled the
action and a permanent custody hearing was scheduled for December 27, 2016.
        {¶20} The permanent custody trial began on December 27, 2016, and was
conducted over a two-day period, ending on February 9, 2017.             The court heard
testimony from Dr. Harvey Kayne, Monique Brown of Neal Kennedy Recovery Clinic,
Jennifer Mackovick of NKRC, Suzanne Rintala of Turning Point, the MCCSB
caseworker, Lisa Kaneski, and the Guardian ad Litem (GAL), Cheryl Zebrasky.
        {¶21} Dr. Harvey Kayne met with Appellant on two occasions, June 2015 and
November 2015. The first meeting was conducted without any significant background
information provided to Dr. Kayne. Said meeting consisted primarily of clinical testing.
Dr. Kayne opined that Appellant was somewhat guarded, defensive, and trying to
present herself in a positive light. Dr. Kayne believed that Appellant was exhibiting
signs of “a well-established personality disorder with multiple symptoms of various
types, all of which can act in consort to negatively impact [her] functions. In general and
more specifically, her parenting.” (Tr. 54). Dr. Kayne opined that the Appellant was
functioning psychologically in an impaired manner, and recommended that she receive
treatment, preferably with a practitioner well-versed in dealing with severely personality-
disordered individuals. (Tr. 55-56).
        {¶22} Two staff members from NKRC testified at trial as to the treatment

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                                                                                   –6–


obtained by Appellant. The staff at NKRC testified that although Appellant attended the
meetings and in-patient programs, they felt that her mental health issues limited her
from fully taking in what she needed to take in from the NKRC treatment programs. (Tr.
107). As a result, NKRC staff felt that they could not meet the mental health needs of
Appellant and referred her for mental health treatment. (Tr. 99-100, 106, 127-128, 134).
      {¶23} Appellant engaged in counseling services at Turning Point on June 27,
2016. However, testimony revealed that between June 27 and the December trial date,
Appellant only attended six out of twelve scheduled sessions (two of which had been
cancelled due to the counselor, four of which were missed by Appellant). (Tr. 141, 147)
      {¶24} The MCCSB caseworker, Lisa Kaneski testified that when the child came
into custody, the case plan for Appellant consisted of: completing a mental health
assessment and following any and all recommendations; completing a drug and alcohol
assessment and completing any and all recommendations; establishing and maintaining
safe and stable housing; attending weekly visitations and being able to show that she
was able to provide for the child’s needs and engage with the child appropriately in
visits; and completing parenting classes.   (Tr. 163-164).   Ms. Kaneski testified that
Appellant was in the process of an eviction from her current home, and that she did not
complete the parenting classes although given additional opportunities to complete
them. (Tr. 167-168). Ms. Kaneski further testified that although Appellant completed
quite a bit of drug and alcohol treatment, Appellant was referred for mental health
treatment from NKRC because that type of treatment was not available at NKRC. (Tr.
170). Ms. Kaneski reported that mental health treatment was really “hit or miss” with
Appellant starting treatment somewhere but not finishing. (Tr. 171). Ms. Kaneski noted
that Appellant had attended various service providers, including Canfield Counseling
Center in February 2015, Turning Point Counseling in October 2015, Advanced
Counseling Solutions in March 2016 (assessment was completed but no follow up
treatment), and then Turning Point again in May/June 2016 (assessment completed
June 27, 2016, counseling began July 25, 2016). (Tr. 172-176, 180-181, 186, 193).
Appellant missed counseling appointments with Turning Point on July 21, August 8,
August 19, and October 19, 2016. (Tr. 193). Appellant attended counseling sessions
on July 25, November 3, November 8, and November 21, 2016. (Tr. 194). Appellant
was assigned a new counselor at Turning Point, and missed a session with the new

Case No. 18 MA 0004
                                                                                     –7–


counselor on December 8, 2016. (Tr. 194). Ms. Kaneski further testified that Appellant
was referred by Turning Point for psychiatric services on July 12, and Appellant did not
follow through with that referral. (Tr. 194). Ms. Kaneski opined that Appellant had not
completed the mental health portion of the case plan. (Tr. 195).
       {¶25} Ms. Kaneski reported, relative to visitation with the minor child, Appellant
had missed more visits than she had attended. Appellant missed or had been late
approximately fifty times over a twenty-one month period. (Tr. 195-196). Ms. Kaneski
opined that Appellant had not completed the case plan regarding visitation. (Tr. 198).
       {¶26} The GAL testified that Appellant’s mental health issues have never been
truly addressed. (Tr. 302). She noted bizarre statements Appellant made, as well as
behaviors observed by GAL and others monitoring visitation between Appellant and the
minor child. (Tr. 302-303.) The GAL expressed concerns that the minor child has a
disciplined schedule with medical appointments for his asthma issues, and Appellant
failed to follow through with simple appointments with the GAL. (Tr. 320-321). The
GAL testified that she believed it to be in the child’s best interest to grant permanent
custody to MCCSB. (Tr. 303, 308, 321.)
       {¶27} The juvenile court issued its Magistrate’s Decision granting permanent
custody with power of adoption to Appellee on May 31, 2017, with an Amended
Magistrate’s Decision on June 6, 2017. Appellant filed Objections to the Magistrate’s
Decision, which were heard on November 1, 2017.            The juvenile court issued its
Judgment Entry affirming the Magistrate’s Decision on December 8, 2017. Appellant
filed the instant appeal alleging three assignments of error.
                               First Assignment of Error

       Appellant argues that the trial court violated Appellant’s right to due
       process of law by failing to appoint her a separate psychological expert to
       assist her in rebutting Appellee’s psychological testimony.

       {¶28} A parent's right to raise his or her children is an essential and basic civil
right. In re Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), citing Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 (1972). We review a trial court’s decision
terminating parental rights and responsibilities for an abuse of discretion. In re Sims,
7th Dist. No. 02-JE-2, 2002-Ohio-3458, at ¶ 23.        An appellate court’s review of a

Case No. 18 MA 0004
                                                                                     –8–


juvenile court’s decision granting permanent custody is limited to whether sufficient
credible evidence exists to support the juvenile court’s determination. In re Starkey, 150
Ohio App.3d 612, 2002-Ohio-6892, 782 N.E.2d 665, ¶ 16.
       {¶29} Appellant argues that the juvenile court violated her right to due process of
law by failing to appoint a separate psychological expert to assist her in rebutting
Appellee’s psychological testimony.    The Appellant did not motion the court, either
written or orally, for a separate psychological expert to assist her in the permanent
custody proceedings.       In fact, Appellant’s counsel in the permanent custody
proceedings argued that Appellant should not have a psychological evaluation at all,
and opposed an evaluation by a professional on contract with the Appellee. The juvenile
court ordered Appellant to complete an evaluation with Dr. Harvey Kayne, and limited
information was provided by MCCSB to Dr. Kayne prior to the first evaluation. (Tr. 11-
12). The record demonstrates that Appellant attended various providers throughout the
proceedings, but failed to follow through with treatment. Appellant never requested a
separate psychological expert to be appointed on her behalf.
       {¶30} The minor child came into custody of Appellee in February 2015. The
permanent custody trial took place over two separate days on December 27, 2016 and
February 9, 2017 respectively. Appellant had an extended period of time to complete
the requirements of her case plan, which included mental health treatment among
various other factors that were not completed in the case plan. Appellant failed to follow
through with treatment, and moved between various providers during the pendency of
the case before the juvenile court.
       {¶31} Appellant relies upon In re Brown, 1st Dist. No. C-850878, 1986 WL
13385 (1986), where the court reversed the grant of permanent custody in that case
based upon the denial of the mother’s request for a continuance of the permanent
custody trial and the appointment of a psychiatric expert to assist in the review and
assessment of records. Id. at ¶¶ 1-2. The Brown Court held that the mother’s mental
health was the determinative factor in the determination of dependency and the
recommendation of permanent custody.         Id. at ¶ 2.   The court in that case was
reviewing the permanent custody determination pursuant to R.C. 2151.353(A)(4). The
court in In re B.G., 8th Dist. No. 81982, 2003-Ohio-3256, ¶ 22 adopted Brown’s holding,
with this clarification:

Case No. 18 MA 0004
                                                                                       –9–


       We are not holding that due process requires the appointment of a
       psychiatric expert in every permanent custody proceeding where a
       parent’s mental health is made an issue. However, in this case, because
       the indigent parent’s mental or emotional health was clearly the
       predominant    issue   from    the   outset   and   ultimately   became   the
       determinative issue, and because the parent made a timely request for
       such assistance, we hold that the assistance of a court-appointed
       psychiatric expert was mandated by the Fourteenth Amendment to the
       United States Constitution and by Section 16, Article I of the Ohio
       Constitution. [Emphasis added].

       {¶32} Here, Appellant had a history of mental health issues that predated the
minor child coming into the custody of MCCSB. Records produced from Turning Point
demonstrated an admission of Appellant on September 18, 2014, presenting with
symptoms of depression with suicidal ideations. Appellant was diagnosed with Mood
Disorder NOS, Alcohol Abuse, Personality Disorder NOS.            Appellant also had two
psychiatric hospitalizations during the pendency of the case before the juvenile court.
The record demonstrates that despite hospitalizations in the Crisis Unit, Appellant did
not follow through with continuing mental health treatment. The record shows Appellant
moved among multiple mental health providers, but failed to follow through with
consistent treatment with any of them.
       {¶33} The record and testimony outlined other factors that supported the juvenile
court’s determination including: inconsistent visitation with the minor child; deteriorating
interaction between the minor child and Appellant during the case; intermittent
employment; and the failure to complete parenting classes despite multiple additional
opportunities offered to Appellant.
       {¶34} The facts of this case do not demonstrate a last-minute request for a
psychiatric expert as in the Brown case, supra. The facts herein demonstrate a long
history of Appellant’s untreated mental health issues that predated the removal of the
minor child from Appellant’s care. The facts also demonstrate multiple other facets of
the case plan that were not completed by Appellant which supported the juvenile court’s
grant of permanent custody to MCCSB. During the pendency of the case before the


Case No. 18 MA 0004
                                                                                      – 10 –


juvenile court, Appellant had multiple opportunities to obtain mental health treatment,
and in fact went to various providers based on either her own volition or upon the orders
of other courts involved in criminal proceedings with Appellant. Appellant failed to follow
through. Appellant’s evaluation by Dr. Kayne was conducted in June and November
2015, leaving substantial time prior to the permanent custody hearing, and at no time
was a separate psychologist requested on behalf of Appellant. Appellant’s due process
rights have not been violated in this case, and the first assignment of error is overruled.
                              Second Assignment of Error

       Appellant argues that the trial court’s December 8, 2017 judgment was
       against the manifest weight of the evidence in its factual finding that
       Appellant’s mental health was so severe as to disable her parenting of
       minor child.

       {¶35} The juvenile court’s decision was based upon the two-prong test of R.C.
2151.414(B)(1)(d). The first prong was satisfied based upon the fact that the minor
child had been in Appellee’s custody in excess of 12 months of a 22-month consecutive
period. As such, the relevant appellate review turns to whether permanent custody was
in the best interest of the minor child. Where a manifest weight challenge is made on
appeal, the appellate court looks at “the inclination of the greater amount of credible
evidence, offered in a trial, to support one side of the issue rather than the other.”
Eastley v. Volkman, 132 Ohio St.3d 328, 2012–Ohio–2179, 972 N.E.2d 517, ¶ 12, citing
State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N.E.2d 541. “Weight
is not a question of mathematics, but depends on its effect in inducing belief.” Id. This
standard of review as set forth in Thompkins has been extended to civil cases generally,
Eastley at ¶ 17, and cases involving the termination of parental rights specifically. See
In re S. Children, 5th Dist. No.2012–CA–00164, 2012–Ohio–6265. We cannot overturn
the findings of the juvenile court if the record contains competent, credible evidence by
which the court could have formed a firm belief or conviction that the essential statutory
elements for a termination of parental rights have been established. In the Matter of
Elliott, 7th Dist. No. 03JE30, 03JE33, 2004-Ohio-388, ¶ 34, citing In re Alyssa C., 153
Ohio App.3d 10, 2003-Ohio-2673, 790 N.E.2d 803, ¶ 13, Cross v. Ledford (1954), 161
Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus.

Case No. 18 MA 0004
                                                                                       – 11 –


       {¶36} Pursuant to R.C. 2151.414(D), in determining the best interest of a child at
a permanent custody hearing, 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
       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.

       {¶37} Applying the factors to the facts in the underlying case, testimony
demonstrated: that the interaction between Appellant and the minor child had
deteriorated during the pendency of the case; that Appellant had missed numerous
visitations; and Appellant was exhibiting bizarre behaviors in the presence of the minor
child during visitation periods.
       {¶38} As to the second factor, based upon the age of the minor child, he is too


Case No. 18 MA 0004
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young to express an opinion as he has been in the custody of MCCSB since he was
twelve (12) months old. The GAL expressed an opinion and recommendation to the
juvenile court, in favor of permanent custody to MCCSB.
       {¶39} For the third factor, the custodial history of the minor child demonstrates
that he has been in the custody of MCCSB for twelve or more months of a consecutive
twenty-two-month period. The MCCSB caseworker testified that the minor child has
been in his current foster home since November 2015. Ms. Kaneski further testified that
the minor child is bonded to the foster parents. (Tr. 212-213). The child was removed
from Appellant’s care at the age of twelve (12) months and has now spent more of his
life in the foster home than with Appellant.
       {¶40} The fourth factor is 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. The underlying proceedings were extended, in part
to grant Appellant additional time to work her case plan with MCCSB. Appellant failed
to complete her case plan, and the testimony before the juvenile court revealed that
very little progress had been made by Appellant despite the amount of extended time
that she had to work her case plan. The minor child has been in the custody of MCCSB
since February 2015 and is in need of a secure permanent placement.
       {¶41} The final factor to review is whether any of the factors in divisions R.C.
2151.414(E)(7) to (11) apply in relation to the parents and child. None of the factors in
R.C. 2151.414(E)(7) to (11) apply in this case.
       {¶42} Based upon the review of the record, sufficient, credible evidence
supports the juvenile court’s finding that permanent custody is in the best interest of the
minor child.
                               Third Assignment of Error

       Appellant   argues    that   the   juvenile   court   incorrectly   used   the
       preponderance of evidence standard of proof instead of the required clear
       and convincing standard for termination of parental rights findings.

       {¶43} R.C. 2151.414(B)(1) requires the court to determine the best interest of
the child by clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 769,
102 S. Ct. 1388, 71 L.Ed. 2d 599 (1982). Clear and convincing evidence is evidence

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that produces in the mind of the trier of fact a firm belief or conviction as to the facts
sought to be established. In re Faulk, 7th Dist. No. 04-CO-36, 2005-Ohio-1352, citing In
re Adoption of Holcomb, 18 Ohio St.3d 361, 368, 481 N.E.2d 613 (1985). Based upon
the evidence presented to the juvenile court, it cannot be concluded that the juvenile
court abused its discretion in granting MCCSB’s motion for permanent custody.
        {¶44} The testimony of the MCCSB caseworker demonstrated that little progress
had been made on Appellant’s case plan toward reunification with the minor child.
Appellant was not consistent with visitation, missing fifty visits over a twenty-one (21)
month period; did not follow through with mental health treatment despite a history of
mental health issues and two hospitalizations during the pendency of the case;
Appellant’s interaction deteriorated with the minor child as evidenced by her behaviors
during the Hope House visits; Appellant had intermittent employment; and although she
had attended drug and alcohol treatment, she was referred for mental health treatment
which resulted in Appellant attending various providers but never following through with
treatment.
        {¶45} The GAL expressed concerns that Appellant had never truly addressed
her mental health issues.    The GAL observed bizarre statements and behaviors of
Appellant, some of which occurred during visitation with the minor child. The GAL was
also concerned about whether the Appellant would follow through with the minor child’s
schedule for doctor appointments and asthma treatment, since Appellant often missed
appointments with the GAL and visitation times. The GAL testified that she believed it
to be in the child’s best interest to grant permanent custody to MCCSB. (Tr. 303, 308,
321.)
        {¶46} Appellant relies upon In re C.M., 9th Dist. No. 21372, 2003-Ohio-5040,
which is distinguishable from the instant case. The court in that case noted that there
was no evidence presented about the interaction and interrelationship between the
minor child and mother, that visitations had increased in that case to involve
unsupervised weekend visitations, and that only three visits had been missed. Id. at ¶
3. In the instant case, there was significant testimony surrounding the deteriorating
relationship between Appellant and the minor child, an overwhelming number of missed
visits with the minor child, and bizarre, inappropriate behaviors that Appellant began
demonstrating during the visits with the minor child. In addition, the C.M. court held that

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the trial court had ignored the GAL recommendation which was not in favor of
permanent custody of the minor child. In the instant case, the GAL recommended
permanent custody be granted to MCCSB. The juvenile court applied the best interest
factors in making its determination to grant permanent custody to MCCSB.
      {¶47} The record below demonstrates clear and convincing evidence that
permanent custody was in the best interest of the minor child.
      {¶48} Thus, based on all of the above, the three assignments of error are
without merit, and the judgment of the juvenile court granting permanent custody of the
minor child to MCCSB with power of adoption is affirmed.

Donofrio, J., concurs.
Waite, J., concurs.




Case No. 18 MA 0004
[Cite as In Re S.S., 2018-Ohio-2790.]




        For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas, Domestic Relations Division of Mahoning County, Ohio, is
affirmed. Costs to be taxed against the Appellant.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




JUDGE KATHLEEN BARTLETT


JUDGE GENE DONOFRIO


JUDGE CHERYL L. WAITE




                                        NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
