Court of Appeals of Ohio, Fourth District, Highland
IN THE MATTER OF: K.W., Adjudicated Dependent Child.
CASE FROM COMMON PLEAS COURT, JUVENILE DIVISION
Allyce Horne, Hillsboro, Ohio, for Appellant D.W.
W. Turner, Hillsboro, Ohio, for Appellants P.W. and C.W.
P. Collins, Highland County Prosecuting Attorney, and Molly
Bolek, Assistant Highland County Prosecuting Attorney,
Hillsboro, Ohio, for Appellee.
Kathyrn Hapner, Hillsboro, Ohio, Guardian Ad Litem.
DECISION AND JUDGMENT ENTRY
B. ABELE, JUDGE.
1} This is a consolidated appeal from a Highland
County Common Pleas Court, Juvenile Division, judgment that
granted Highland County Children Services (HCCS), appellee
herein, permanent custody of thirteen-year-old K. W. This
matter has a long and tortured history for everyone involved
in this case, but especially for the minor child. D.W., the
child's biological father, raises the following
assignments of error:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT'S DECISION TO GRANT PERMANENT
CUSTODY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE AS THE COURT
ABUSED ITS DISCRETION BASED ON THE TOTALITY OF THE
CIRCUMSTANCES IN SUSPENDING THE VISITATION OF FATHER, THAT
THE AGENCY DID NOT MAKE REASONABLE EFFORTS IN REGARDS TO
FATHER, AND THE AGENCY FAILED TO PROVE BY CLEAR AND
CONVINCING EVIDENCE THAT K.W. COULD NOT BE REUNIFIED WITH
FATHER IN A REASONABLE TIME WITH THE COURT USING EVIDENCE
OUTSIDE THOSE FACTS WHICH LEAD UP TO THE ORIGINAL FINDING OF
DEPENDENCY IN THIS CASE."
SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DENYING THE FATHER'S
MOTION FOR K.W. TO UNDERGO A NEW PSYCHOLOGICAL AS HE HAS A
RIGHT TO DUE PROCESS UNDER THE UNITED STATES CONSTITUTION AND
THE OHIO CONSTITUTION IS VIOLATED DURING A PERMANENT CUSTODY
HEARING WHEN HE IS DENIED ACCESS TO FUNDAMENTALLY FAIR
PROCEEDINGS, OF WHICH, THE AVAILABILITY OF EXPERT ASSISTANCE
MAY BE ONE WHEN MENTAL HEALTH IS AN ISSUE."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN RELYING ON STALE AND
CONFLICTING PSYCHOLOGICAL EVALUATION AND MENTAL HEALTH
ASSESSMENTS TO DETERMINE FATHER'S MENTAL HEALTH DIAGNOSIS
AS WELL AS CITING AN INCORRECT DIAGNOSIS FROM THE
PSYCHOLOGIST IN THE COURT'S DECISION AND THEN USING THE
INCORRECT DIAGNOSIS TO JUSTIFY THE DECISION FOR PERMANENT
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN DENYING FATHER'S MOTION TO
EXCLUDE THE GUARDIAN AD LITEM'S REPORT FROM TESTIMONY AS
THE GUARDIAN AD LITEM FAILED TO MEET THE DE MINIMIS
REQUIREMENTS OF SUPERINTENDENCE RULE 48."
2} Also, the child's paternal grandparents, P.W.
and C.W., raise the following assignments of error:
FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ABUSED ITS DISCRETION PROCEDURALLY
DURING THE PERMANENT CUSTODY HEARINGS, CONSTITUTING
PREJUDICIAL ERROR" SECOND ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED IN FINDING THAT THE AGENCY HAD
MADE REASONABLE EFFORTS TO REUNIFY THE CHILD WITH HER PARENTS
3} K.W. has been the subject of a custody dispute
since 2010, when the child's mother left the child with
the parental grandparents. Father later filed a complaint and
requested the child's legal custody. The trial court
ultimately found the mother and the father to be unsuitable,
and placed K.W. in the paternal grandparents' legal
4} The trial court found the mother unsuitable for
the following reasons: (1) she relinquished custody; (2) she
has not seen or contacted the child since December 24, 2010;
(3) she is homeless; and (4) she is incapable of caring for
the child. The court also found that the father is unsuitable
and that it would be harmful/detrimental to place child in
father's custody based upon the following circumstances:
(1) "[b]oth parents exert an unhealthy level of control
over the child which confuses the child to the extent she is
fearful to exhibit any care or love for one parent in the
presence of the other"; (2) "[t]he child is
concerned over physical violence while in the home of her
father"; (3) "[b]oth parents use Parental
Alienation techniques by isolating the child from social
contacts which have led to academic delays and lack of
adequate medical care"; (4) the father displays a
"pattern of controlling women" and an
"aggressive/assertive nature"; (5) "[t]he
father has isolated the child and controlled her to an extent
it was detrimental to the child"; (6) the mother
testified that the father "beat [her] about a dozen
times" and has "threatened to kill" her if she
reported him; (7) during her in camera interview, the child
stated that "her father had been violent with her and
that she wanted to remain with her grandparents"; (8)
the father is physically abusive; and (9) the child reported
seeing the father abuse the mother.
5} The trial court awarded both mother and father
supervised parenting time to be held at the Family Advocacy
Center (FAC). The mother occasionally visited the child. The
father had some visits with the child, but the grandparents
refused to bring the child to visits for over one year. This
situation persisted until 2014, when appellee filed a
6} The dependency complaint alleged that the
grandparents violated the court order regarding the
mother's and the father's parenting time by
permitting the mother to have contact with the child outside
of the FAC and by refusing to allow the father to visit the
7} On September 16, 2014, the trial court
adjudicated the child dependent based upon the following
facts: (1) the grandparents live in a camper without running
water; (2) between August 2013 and June 2014, the
grandparents refused to take the child to visit the father;
(3) the grandparents have allowed the child to have contact
with her mother outside of the FAC, in violation of a court
order; and (4) the grandparents have denigrated the father in
the child's presence in an effort to alienate her
affections. The court subsequently placed the child in
appellee's temporary custody.
8} On January 12, 2016, appellee filed a motion to
modify the disposition to permanent custody. Appellee
asserted that the child has been in its temporary custody for
at least twelve out of the last twenty-two consecutive months
and that it is in the child's best interest to place her
in appellee's permanent custody. Appellee alleged that
although the father has attended most of his visits with the
child, "his behavior and demeanor toward the child
during some of the visits is cause for concern."
Appellee further asserted that the child "is thriving in
the [foster home] and bonded with the family and other
children in the home."
9} Due to unforeseen circumstances, the trial court
continued the permanent custody hearing a few times. While
the permanent custody motion remained in abeyance, father
filed a motion to increase his visitation time. The court
subsequently granted father's request and extended time
from two hours to three hours. One month later, however, the
court curtailed father's visits. The court found that
testimony from the child's counselor, the guardian ad
litem and children services "regarding supervision of
the current visits indicated that the visits are very
problematic and create trauma for the child. [The father]
spends a good part of his parenting time correcting or
disciplining the child to the point that the child would ask
the agency to terminate the visit."
10} Appellee later dismissed its permanent custody
motion and filed a new dependency complaint that involved the
child. The new complaint alleged that although father
regularly visited the child, he has not had any visits
outside of the FAC since April 2011. Appellee further
asserted that family counseling is a case plan objective, but
that it has not yet occurred. Appellee requested the court to
grant it temporary custody of the child.
11} On October 7, 2016, father admitted dependency
and the trial court adjudicated the child dependent. The
court (1) ordered the child to remain in appellee's
(HCCS) temporary custody pending further hearings, and (2)
found that appellee used reasonable efforts by providing case
12} The case plan that appellee developed indicated
that the father "has been involved in several criminal
cases regarding drugs and domestic violence. The relationship
between [the father] and his parents, [the paternal
grandparents], is basically non-existent. [The child] is
constantly being put in the middle of [their] altercations,
which is making her very confused as to what to do or say to
both parties." The case plan stated that the father
"will no longer use illegal substances" and
"will learn how to cope/respond to unexpected
stressors." The case plan required him to submit to
random drug screens, sign necessary releases, inform appellee
of any address or phone number changes, make himself
available for monthly, face-to-face contact with appellee,
call his caseworker to inquire about all appointments for the
child, and "begin/complete counseling services as
recommended by Bobbie Hopes." The case plan also stated
that the "[c]aseworker will make a referral for services
at an agency-approved provider."
13} On November 1, 2016, mother and the grandparents
admitted dependency. The trial court again adjudicated the
child dependent. The parties agreed to continue the child in
appellee's temporary custody for six months.
Additionally, the court (1) allowed mother to have supervised
visits at the FAC, (2) did not allow the grandparents to have
visitation without appellee's and the GAL's approval,
and (3) allowed the father to have visits with the child at
the FAC that graduated to supervised visits outside of the
FAC and eventually unsupervised visits outside of the FAC,
subject to various conditions. The court further found that
appellee used reasonable efforts.
14} On January 25, 2017, the GAL filed a motion to
suspend father's and grandparents' visitations. She
alleged that the child has expressed suicidal ideation as a
result of the family counseling currently occurring between
the child and father. The GAL indicated that "the
child's counselor believes that continued counseling with
father would be detrimental to the child." The GAL
further asserted that the "[f]ather is not responding
well to the child's viewpoint and later uses his
visitation time to criticize and belittle her regarding
issues she has brought up during counseling session."
She additionally claimed that "[t]he father has
exhibited unacceptable behavior at his supervised visits at
the Family Advocacy Center both toward the child and toward
staff members of the Advocacy Center." The GAL asserted
that the grandparents "have attempted to discuss issues
with the child which are not to be discussed with her."
15} Father opposed the GAL's motion and
requested that the court not suspend his visits, but instead,
allow him to have supervised visit with the child. He argued
that suspending his visits would hinder case plan progress
and prevent reunification. He further claimed that the
child's counselor is biased against him.
16} Father also filed a motion to request the court
to order the child to undergo a new psychological evaluation
or assessment. He noted that her last evaluation occurred
over two years earlier.
17} On January 30, 2017, the trial court suspended
father's and grandparents' visitations.
18} Appellee subsequently filed a motion to modify
the disposition to permanent custody and asserted that (1)
the child has been in its temporary custody for more than
twelve out of the past twenty-two months, and (2) placing the
child in appellee's permanent custody is in her best
interest. Appellee claimed that the father did not
consistently visit the child throughout November and December
2016, and that his visits were suspended as of January 30,
2017. Appellee alleged that family counseling did not benefit
the father and the child's interaction and
interrelationship and, in fact, the counselors terminated
family counseling due to the child's increased anxiety
and expressions of self-harm if she would be required to
continue to see her father.
19} The trial court interviewed the child twice and
heard from more than twenty witnesses over eight days of
testimony. Additionally, the parties submitted more than
forty exhibits and the depositions of two other witnesses for
the court to review.
20} A brief summary of the evidence reveals that
appellee presented evidence and testimony that tended to show
that, although the father and the child shared many positive
visits within the confines of the FAC, the father and the
child have had a strained relationship. The child has
real or planted memories of her father physically harming her
mother. Some of the testimony suggests that the child's
grandparents may have planted negative memories of her
father. Regardless, the child believed the memories to be
true, and father failed to validate her feelings-whether the
memories were true or not. Father's failure to validate
the child's feelings appears to be the root cause of the
parties' strained relationship as the child grew into
adolescence. As the child matured, she expressed an
unwavering fear of her father and extreme anxiety over the
thought that the court might place her in his custody.
21} Until November 2016, father hardly missed a
visit with the child. However, beginning in mid to late
November 2016 father missed five visits with the child.
Father offered varying reasons for missing the visits,
claiming that he either "forgot" or that he forgot
to confirm the visits twenty-four hours in advance, as he had
been doing for the previous two and one-half years when the
child was in appellee's temporary custody. Appellee,
however, presented evidence that father consciously chose not
to visit the child. FAC staff stated that father was upset
that his parents were allowed to visit the child immediately
before his visit and that father informed FAC staff that he
was afraid of his parents. Father denied, however, that he
did not visit due to fear of his parents.
22} In November 2016, child and father started
family counseling. Throughout six sessions, father was unable
or unwilling to demonstrate adequate techniques of relating
to his now thirteen-year-old daughter, who had not lived with
him since she was approximately six years of age. Instead,
father (1) dominated the sessions and would not allow the
child to express her feelings of hurt and her wishes for the
future, and (2) displayed rigidity and would not yield. The
child's counselor believed that the sessions were truly
harmful to the child and a source of her recent suicidal
ideations. Because the counselor believed the family
counseling sessions harmed the child, she recommended the
sessions be suspended. Father's counselor likewise
believed that the family counseling sessions did not improve
the father-child relationship.
23} After considering all of the evidence and
testimony, the trial court awarded appellee permanent custody
of the child. The court found that the child had been in
appellee's temporary custody for more than twelve months
out of a consecutive twenty-two-month period and that placing
the child in appellee's permanent custody is in her best
interest. The court found that the child and father did not
share an overly positive relationship, but instead, father
displayed controlling and unyielding behavior towards the
child. On the other hand, the child has thrived while in the
foster home. Her academic performance has improved, her
demeanor has improved, and her emotional needs are being met.
The court further noted that the child consistently expressed
a desire to be placed in appellee's permanent custody so
that the foster family could adopt her and did not indicate
any desire to live with her father. Consequently, the court
placed the child in appellee's permanent custody. These
24} In his first assignment of error, father
asserts, in essence, that the trial court's permanent
custody decision is against the manifest weight of the
evidence. More particularly, father challenges (1) the
court's decision to suspend his visits with the child,
(2) the court's finding that the agency used reasonable
efforts, and (3) the court's finding that the child
cannot be placed with the father within a reasonable time or
should not be placed with him.
25} Initially, we note that a reviewing court
ordinarily will not disturb a trial court's permanent
custody decision unless the decision is against the manifest
weight of the evidence. E.g., In re B.E., 4th Dist.
Highland No. 13CA26, 2014-Ohio-3178, ¶27; In re
R.S., 4th Dist. Highland No. 13CA22, 2013-Ohio-5569,
"Weight of the evidence concerns 'the inclination of
the greater amount of credible evidence, offered in a trial,
to support one side of the issue rather than the other. It
indicates clearly to the jury that the party having the
burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the
greater amount of credible evidence sustains the issue which
is to be established before them. Weight is not a question of
mathematics, but depends on its effect in inducing
Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, 972 N.E.2d 517, ¶12, quoting State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997), quoting Black's Law Dictionary 1594 (6th
26} When an appellate court reviews whether a trial
court's permanent custody decision is against the
manifest weight of the evidence, the court
"'"weighs the evidence and all reasonable
inferences, considers the credibility of witnesses and
determines whether in resolving conflicts in the evidence,
the [finder of fact] clearly lost its way and created such a
manifest miscarriage of justice that the [judgment] must be
reversed and a new trial ordered."'"
Eastley at ¶20, quoting Tewarson v.
Simon, 141 Ohio App.3d 103, 115, 750 N.E.2d 176 (9th
Dist.2001), quoting Thompkins, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983); accord In re
Pittman, 9th Dist. Summit No. 20894, 2002-Ohio-2208,
27} The question that we must resolve when reviewing
a permanent custody decision under the manifest weight of the
evidence standard 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:
the measure or degree of proof that will produce in the mind
of the trier of fact a firm belief or conviction as to the
allegations sought to be established. It is intermediate,
being more than a mere preponderance, but not to the extent
of such certainty as required beyond a reasonable doubt as in
criminal cases. It does not mean clear and unequivocal.
In re Estate of Haynes, 25 Ohio St.3d 101, 103-04,
495 N.E.2d 23 (1986). In determining whether a trial court
based its decision upon clear and convincing evidence,
"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." State v.
Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 (1990);
accord In re Holcomb, 18 Ohio St.3d 361, 368, 481
N.E.2d 613 (1985), citing Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954) ("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 sufficient
evidence before it to satisfy this burden of proof.")
In re Adoption of Lay, 25 Ohio St.3d 41,
42-43, 495 N.E.2d 9 (1986). Cf. In re Adoption of
Masa, 23 Ohio St.3d 163, 165, 492 N.E.2d 140 (1986)
(stating that whether a fact has been "proven by clear
and convincing evidence in a particular case is a
determination for the [trial] court and will not be disturbed
on appeal unless such determination is against the manifest
weight of the evidence"). Thus, if 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., 4th Dist. Athens Nos. 12CA43 and 12CA44,
2013-Ohio-3588, ¶62; In re R.L., 2nd Dist.
Greene Nos. 2012CA32 and 2012CA33, 2012-Ohio-6049, ¶17,
quoting In re A.U, 2nd Dist. Montgomery No. 22287,
2008-Ohio-187, ¶9 ("A reviewing court will not
overturn a court's grant of permanent custody to the
state as being contrary to the manifest weight of the
evidence 'if the record contains competent, credible
evidence by which the court could have formed a firm belief
or conviction that the essential statutory elements * * *
have been established.'"). Once the reviewing court
finishes its examination, the court may reverse the judgment
only if it appears that the fact-finder, when resolving the
conflicts in evidence, "'clearly lost its way and
created such a manifest miscarriage of justice that the
[judgment] must be reversed and a new trial
ordered.'" Thompkins, 78 Ohio St.3d at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175,
485 N.E.2d 717 (1st Dist.1983). A reviewing court should find
a trial court's permanent custody decision against the
manifest weight of the evidence only in the "
'exceptional case in which the evidence weighs heavily
against the [decision].'" Id., quoting
Martin, 20 Ohio App.3d at 175; accord State v.
Lindsey, 87 Ohio St.3d 479, 483, 721 N.E.2d 995 (2000).
28} Furthermore, when reviewing evidence under the
manifest weight of the evidence standard, an appellate court
generally must defer to the fact-finder's credibility
determinations. Eastley at ¶21. As the
Eastley court explained:
"[I]n determining whether the judgment below is
manifestly against the weight of the evidence, every
reasonable intendment must be made in favor of the judgment
and the finding of facts. * * *
If the evidence is susceptible of more than one construction,
the reviewing court is bound to give it that interpretation
which is consistent with the verdict and judgment, most
favorable to sustaining the verdict and judgment."
Id., quoting Seasons Coal Co., Inc. v.
Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984),
fn.3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,
Section 60, at 191-192 (1978).
29} Moreover, deferring to the trial court on
matters of credibility is "crucial in a child custody
case, where there may be much evident in the parties'
demeanor and attitude that does not translate to the record
well." Davis v. Flickinger, 77 Ohio St.3d 415,
419, 674 N.E.2d 1159 (1997); accord In re Christian,
4th Dist. Athens No. 04CA10, 2004-Ohio-3146, ¶7. As the
Ohio Supreme Court long-ago explained:
In proceedings involving the custody and welfare of children
the power of the trial court to exercise discretion is
peculiarly important. The knowledge obtained through contact
with and observation of the parties and through independent
investigation can not be conveyed to a reviewing court by
Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d
30} Furthermore, unlike an ordinary civil proceeding
in which a jury has no contact with the parties before a
trial, in a permanent custody case a trial court judge may
have had significant contact with the parties before a
permanent custody motion is even filed. In such a situation,
it is not unreasonable to presume that the trial court judge
had far more opportunities to evaluate the credibility,
demeanor, attitude, etc., of the parties than this court ever
could from a mere reading of the permanent custody hearing
31} R.C. 2151.414(B)(1) permits a trial court to
grant permanent custody of a child to a children services
agency if the court determines, by clear and convincing
evidence, that the child's best interest would be served
by the award of permanent custody and that:
(a) The child is not abandoned or orphaned or has not 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 ending on or
after March 18, 1999, and the child cannot be placed with
either of the child's parents within a reasonable time or
should not be placed with the child's parents.
(b) The child is abandoned.
(c) The child is orphaned, and there are no relatives of the
child who are able to take permanent custody.
(d) The child has been in the temporary custody of one or
more public children services agencies or private child
placing agencies for twelve or more months of a consecutive
twenty-two month period ending on or after March 18, 1999.
(e) The child or another child in the custody of the parent
or parents from whose custody the child has been removed has
been adjudicated an abused, neglected, or dependent child on
three separate occasions by any court in this state or
32} Thus, before a trial court may award a children
services agency permanent custody, it must find that (1) one
of the circumstances described in R.C. 2151.414(B)(1)
applies, and (2) awarding the children services agency
permanent custody would further the child's best
33} R.C. 2151.414(D) directs a trial court to
consider "all relevant factors, " as well as
specific factors, to determine whether a child's best
interests will be served by granting a children services
agency permanent custody. The listed factors include: (1) the
child's interaction and interrelationship with the
child's parents, siblings, relatives, foster parents and
out-of-home providers, and any other person who may
significantly affect the child; (2) the child's wishes,
as expressed directly by the child or through the child's
guardian ad litem, with due regard for the child's
maturity; (3) the child's custodial history; (4) 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; and (5) whether any
factors listed under R.C. 2151.414(E)(7) to (11) apply.
34} Determining whether granting permanent custody
to a children services agency will promote a child's best
interest involves a delicate balancing of "all relevant
[best interest] factors, " as well as the "five
enumerated statutory factors." In re C.F., 113
Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶57,
citing In re Schaefer, 111 Ohio St.3d 498,
2006-Ohio-5513, 857 N.E.2d 532, ¶56; accord In re
C.G., 9th Dist. Summit Nos. 24097 and 24099,
2008-Ohio-3773, ¶28; In re N.W., 10th Dist.
Franklin Nos. 07AP-590 and 07AP-591, 2008-Ohio-297, 2008 WL
224356, ¶19. However, none of the best interest factors
requires a court to give it "greater weight or
heightened significance." C.F. at ¶57.
Instead, the trial court considers the totality of the
circumstances when making its best interest determination.
In re K.M.S., 3rd Dist. Marion Nos. 9-15-37,
9-15-38, and 9-15-39, 2017-Ohio-142, 2017 WL 168864,
¶24; In re AC, 9th Dist. Summit No. 27328,
2014-Ohio-4918, ¶46. In general, "[a] child's
best interest is served by placing the child in a permanent
situation that fosters growth, stability, and security."
In re C.B.C., 4th Dist. Lawrence Nos. 15CA18 and
15CA19, 2016-Ohio-916, 2016 WL 915012, ¶66, citing
In re Adoption of Ridenour, 61 Ohio St.3d 319, 324,
574 N.E.2d 1055 (1991).
35} In the case at bar, we initially note that
absent from the father's brief is any discussion
regarding the child's best interest and how the
best-interest factors apply to this case. Moreover, father
does not directly correlate the trial court's suspension
of his visits to any of the best-interest factors. Instead,
father focuses upon how the court's decision to suspend
his visits negatively affected his ability to reunify with
the child. We nevertheless construe father's argument as
asserting that suspending his visits with the child deprived
him of the opportunity to strengthen his relationship with
the child so that the best interest factors would tilt in
favor of placing the child in his custody. Father also
complains that the trial court incorrectly suspended his
visits without holding a hearing and without hearing any
evidence, beyond the GAL's motion. Father claims that the
evidence presented at the permanent custody hearing failed to
support the court's decision to suspend visits, but
instead shows that the court based its decision upon
"speculation and testimony from persons biased towards
the father." Father continues: "With absolutely no
testimony as to the source of the child's behavioral
problems other than pure speculation on the part of the
counselor, foster parent, and doctor, the court completely
hindered father's ability to reunify."
36} Appellee counters that the trial court's
decision to terminate visits was not based upon speculation,
but instead upon the child's expression of self-harm and
suicide. Appellee alleges that father criticized and
belittled the child during counseling sessions and exhibited
unacceptable behavior during his supervised visits. Appellee
additionally points out that the child's counselor stated
that continued counseling with father would be detrimental to
37} The GAL likewise responds that the trial court
did not terminate father's visits based solely upon
speculation, but instead asserts that the court interviewed
the child on March 8, 2017 to ascertain her wishes and
desires concerning both visitation and permanent custody.
Moreover, during a November 2016 family counseling session,
the child told her father that she did not want to live with
him and wants her foster parents to adopt her. Additionally,
the child's counselor testified that the child displayed
high levels of stress during family counseling, did not want
to make eye contact with her father, and refused her
38} Generally, we review a trial court decision
regarding a parent's visitation rights in the context of
an abuse, neglect, or dependency action for an abuse of
discretion. In re C.J., 4th Dist. Vinton No.
10CA681, 2011-Ohio-3366, 2011 WL 2650841, ¶11, citing
In re Carpenter, Washington App. No. 01 CA26,
2002-Ohio-509, 2002 WL 185569, at *3; In re Unger
Children, 5th Dist. Coshocton No. 04 CA 6,
2005-Ohio-2414, 2005 WL 1163915, ¶81. "'[A]buse
of discretion' [means] an 'unreasonable, arbitrary,
or unconscionable use of discretion, view or action that no
conscientious judge could honestly have taken.'"
State v. Kirkland, 140 Ohio St.3d 73, 15 N.E.3d 818,
2014-Ohio-1966, ¶67, quoting State v. Brady,
119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶23.
"A court abuses its discretion by taking action that
lacks reason, justification, or conscience." In re
D.S., ___ Ohio St.3d ___, 2017-Ohio-8289, ___ N.E.3d --,
¶8. "An abuse of discretion includes a situation in
which a trial court did not engage in a '"sound
reasoning process."'" State v.
Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d
971, ¶34, quoting State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶14, quoting
AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d
597 (1990). The abuse-of-discretion standard is deferential
and does not permit an appellate court to simply substitute
its judgment for that of the trial court. Darmond at
39} Case plans should ordinarily include
"'regular and frequent visitation and communication
or other contact between the parents and child * *
*.'" In re Jones, 29 Ohio App.3d 176, 180,
504 N.E.2d 719 (8th Dist.1985), quoting former R.C.
2151.412(B)(1)(b)(I). However, "the child's health
and safety shall be the paramount concern." R.C.
40} A court that is reviewing visitation issues in
an abuse, neglect, or dependency case should consider
"the totality of circumstances as they relate to the
child's best interest." C.J. at
¶15; In re Knisley, 4th Dist. No. 97CA2316,
1998 WL 372703 (May 26, 1998), *6 (explaining that in
dependency proceedings, "the juvenile court should
consider the issue of visitation under the totality of the
circumstances, considering, to the extent they are
applicable, those [best interest] factors set forth in R.C.
3109.051(D)"); accord In re J.S., 11th Dist.
Lake No. 2011-L-162, 2012-Ohio-4461, 2012 WL 4481311,
¶30; In re C.H., 10th Dist. No. 10AP-579,
2011-Ohio-1386, ¶12; In re C.C., 2nd Dist. No.
21707, 2007-Ohio-3696, ¶8. "Until permanent custody
is granted by the court, visitations should not be
prematurely curtailed, unless it can be shown that the child
will truly be harmed by the visitations." In re
Jeffrey S., 6th Dist. Lucas No. L-96-178, 1998 WL
879652, *12. Thus, a court ordinarily should deny visitation
only in "exceptional cases." Jones, 29
Ohio App.3d at 180.
41} In Jones, for example, the court
concluded that the trial court properly exercised its
discretion by denying visitation when the court based its
decision upon the child's wishes, as well as the
testimony of therapists and psychologists. In Jones,
the child's mental health professionals "concluded
that forced visitation with [the parent] would be deleterious
to [the child]'s mental and emotional health."
Id. At 180.
42} In Unger, the court concluded that the
evidence established that the child's visits with the
parent caused "trauma." Additionally, the child
explained reasons why he did not wish to visit the parent.
Moreover, both the child's counselor and the guardian ad
litem recommended against visitation.
43} On the other hand, in Jeffrey S. the
court determined that the trial court abused its discretion
by preventing visits between the children and their parents.
In Jeffrey S., the guardian ad litem filed a motion
to terminate visits based upon an allegation that the mother
advised "the children not to speak to anyone, including
therapists, regarding abuse issues." The evidence
showed, however, that the visits occurred under "close
supervision" and were "positive." Id.
at *12. Additionally, "the children looked forward to
the visits with all the parents" and "were
reluctant to leave the visits." Id. at *13. The
court determined that the guardian ad litem's concerns
"were thus too speculative to warrant a continuing no
contact order." Id.
44} In the case at bar, we do not believe that the
trial court abused its discretion by suspending visits
between father and child. The guardian ad litem asserted that
the child was expressing thoughts of suicide due to her fear
of being placed in her father's custody. At the permanent
custody hearing, the GAL testified that the child's
counselor had called the GAL, and the counselor "was
very concerned." The GAL indicated that she believed
that she "needed to do something." The GAL stated
that she spoke with the child, and she thought that her
"only option at that point in time was to ask the court
to suspend any visitation before any harm could come to [the
child]." The GAL additionally stated that although the
child initially was willing to visit with her father at the
FAC, "she no longer wants to have any contact with
45} The child's counselor opined that father was
"emotionally abusive" to the child because he
"wouldn't acknowledge [the child's] thoughts or
her feelings, " "he wanted to dominate, " and
"he wanted to tell his story, but he wasn't willing
to listen to hers." The child's pediatrician
believed that the entire reunification process had been
traumatic for the child.
46} The trial court interviewed the child twice-in
November 2016 and March 2017-and each time the child
consistently stated that she did not want to live with her
father, but instead she wanted to be adopted "real
quick." During the March 2017 interview, the child
related her fear of her father and her concerns about being
placed in his custody.
47} The trial court briefly addressed the
father's motion to reinstate his visits following the
March 20, 2017 permanent custody hearing, and the guardian ad
litem indicated that the child "does not wish to
visit." The GAL additionally stated that she does not
believe that visits with father are in the child's best
48} The trial court found that, in light of the
child's "delicate emotional situation, " visits
with father would not be prudent. The court expressed its
"fear that she could * * * possibly * * * and I'm
using this term very speculatively * * * do harm to herself.
And I'm not going to have that risk on my
49} In light of all of the foregoing circumstances,
we are unable to conclude that the trial court acted
unreasonably, arbitrarily, or unconscionably by suspending
father's visits. Instead, the court could have reasonably
concluded that the visits caused the child emotional harm
and, thus, were not in her best interest.
50} To the extent that appellant contends that the
trial court erred by failing to hold an evidentiary hearing
before the court granted the motion to terminate the visits,
we observe that father did not file a timely request for a
hearing. R.C. 2151.412(F)(2) specifies the procedure that
applies when any party "propose[s] a change to a
substantive part of the case plan, including, but not limited
to, the child's placement and the visitation rights of
any party." The statute states:
* * * * A party proposing a change to the case plan shall
file the proposed change with the court and give notice of
the proposed change in writing before the end of the day
after the day of filing it to all parties and the child's
guardian ad litem. All parties and the guardian ad litem
shall have seven days from the date the notice is sent to
object to and request a hearing on the proposed change.
statute thus contemplates that a party who opposes a proposed
change must request a hearing in order to be entitled to one.
Otherwise, "the court may approve the proposed change
without a hearing." R.C. 2151.412(F)(2)(b).
51} In the case at bar, father did not request the
court to hold a hearing within seven days from the date the
GAL filed her motion to suspend visitations. Consequently,
the statute did not require the trial court to hold a
52} While we also recognize that suspending
father's visits impacted his relationship with the child,
the suspension of the visits occurred at the end of a very
long road. The child already had been in appellee's
temporary custody for more than two and one-half years, and,
during that time frame, father had more than ample
opportunities to establish a healthy parent-child bond.
However, father did not progress to the point that he could
exercise unsupervised visits with the child. We thus believe
that father's conduct, and the reactions to his conduct,
caused the missed opportunities to develop a healthy
53} Accordingly, we disagree with father that the
trial court abused its discretion by suspending his visits or
that the suspension of his visits contributed to the trial
court's finding that placing the child in appellee's
permanent custody is in her best interest.
54} Father next asserts that appellee failed to use
reasonable efforts to reunify the family. He claims that he
completed his case plan and "used every resource
available to him to address his mental health, to improve his
parenting skills, to improve his overall functioning and
ability to parent [the child], to have adequate housing for
her and to have financial stability to provide for [the
child]." The father additionally points out that he
attended the vast majority of his visits with the child and
that he engaged in family counseling sessions in an attempt
to deepen his relationship with his daughter. Father contends
that despite all of his efforts, appellee did not use
reasonable efforts. He faults the caseworker for failing to
hold case review meetings or semiannual administrative
reviews (SARs). He also claims that appellee should have
subjected the child to further psychological evaluation after
she expressed thoughts of suicide and that appellee should
have instituted family counseling much sooner than November
55} Appellee responds that the trial court made
several reasonable-efforts findings in the prior case and
also made a reasonable-efforts finding on November 1, 2016.
Appellee further points out that contact with the father
became difficult once the father informed his caseworker and
the GAL not to contact him anymore, but rather, to contact
his attorney. Appellee claims that the father "created
his own hurdles which made it difficult for the Agency to
56} R.C. 2151.419(A)(1) requires a trial court to
determine whether a children services agency "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." However, this
statute applies only at "adjudicatory, emergency,
detention, and temporary-disposition hearings, and
dispositional hearings for abused, neglected, or dependent
children * * *." C.F., supra, at ¶41;
accord In re C.B.C., 4th Dist. Lawrence Nos. 15CA18
and 15CA19, 2016-Ohio-916, 2016 WL 915012, ¶72. Thus,
"'[b]y its plain terms, the statute does not apply
to motions for permanent custody brought pursuant to R.C.
2151.413, or to hearings held on such motions pursuant to
R.C. 2151.414.'" C.F. at ¶41, quoting
In re A.C, 12th Dist. Clermont No. CA2004-05-041,
2004-Ohio-5531, ¶30. Nonetheless, "[t]his does not
mean that the agency is relieved of the duty to make
reasonable efforts" before seeking permanent custody.
Id. at ¶42. Instead, at prior "stages of
the child-custody proceeding, the agency may be required
under other statutes to prove that it has made reasonable
efforts toward family reunification." Id.
Additionally, "[if] the agency has not established that
reasonable efforts have been made prior to the hearing on a
motion for permanent custody, then it must demonstrate such
efforts at that time." Id. at ¶43.
57} We discussed the meaning of "reasonable
efforts" in C.B.C., supra, at ¶76, as
In general, "reasonable efforts" mean
"'[t]he state's efforts to resolve the threat to
the child before removing the child or to permit the child to
return home after the threat is removed.'"
C.F. at ¶28, quoting Will L. Crossley,
Defining Reasonable Efforts: Demystifying the State's
Burden Under Federal Child Protection Legislation, 12
B.U.Pub.Int.L. J. 259, 260 (2003). "'Reasonable
efforts means that a children's services agency must act
diligently and provide services appropriate to the
family's need to prevent the child's removal or as a
predicate to reunification.'" In re H.M.K.,
3d Dist. Wyandot Nos. 16-12-15 and 16-12-16, 2013-Ohio-4317,
¶95, quoting In re DA, 6th Dist. Lucas No.
L-11-1197, 2012-Ohio-1104, ¶30. In other words, the
agency must use reasonable efforts to help remove the
obstacles preventing family reunification. Bean,
Reasonable Efforts: What State Courts Think, 36 U.
Tol. L.Rev. 321, 366 (2005), quoting In re Child of
E.V., 634 N.W.2d 443, 447 (Minn.Ct.App.2001),
and In re K.L.P., No. C1-99-1235, 2000 WL 343203, at
*5 (Minn.Ct.App. Apr. 4, 2000) (explaining that the agency
must address what is "necessary to correct the
conditions that led to the out-of-home placement" and
must "provide those services that would assist in
alleviating the conditions leading to the determination of
dependency"). However, "'[r]easonable
efforts' does not mean all available efforts. Otherwise,
there would always be an argument that one more additional
service, no matter how remote, may have made reunification
possible." In re Lewis, 4th Dist. Athens No.
03CA12, 2003-Ohio-5262, ¶16. Furthermore, the meaning of
"reasonable efforts" "will obviously vary with
the circumstances of each individual case." Suter v.
Artist M, 503 U.S. 347, 360, 112 S.Ct. 1360, 118 L.Ed.2d
1 (1992). Additionally, "[i]n determining whether
reasonable efforts were made, the child's health and
safety shall be paramount." R.C. 2151.419(A)(1).
58} In the case at bar, after our review of the
record we believe that the record shows that appellee used
reasonable efforts. Appellee provided extensive case
management services over the course of more than two years.
Appellee offered referrals and supervised visitations.
Wheaton testified as to the amount of time and energy she
spent on this case, and indicated that she spent more time on
this case than any other case in her career.
59} While appellee may not have implemented family
counseling as quickly as the father would have preferred,
appellee cited a valid reason for the delay-the child's
counselor did not believe that the child was ready to engage
in family counseling. Indeed, the main point of
appellee's decision to dismiss its first permanent
custody motion and to file a new case was to allow father and
child to engage in family counseling. Father and the child
engaged in six family counseling sessions, but the sessions
did not help the father and the child establish a healthy
relationship such that reunification could be a possibility.
Instead, both the father's counselor and the child's
counselor described the family counseling sessions as
unsuccessful. The child's counselor believed the sessions
emotionally harmed the child and did not believe that
subjecting her to this continued emotional abuse would
strengthen the parties' relationship sufficiently that
reunification could be attempted. In sum, we have reviewed
the record and find nothing to suggest that appellee's
efforts fell short of reasonable.
60} Furthermore, even though father may have engaged
in the services that appellee requested of him, case plan
compliance is not necessarily dispositive on the issue of
reunification and does not preclude a grant of permanent
custody to a children's services agency. In re
W.C.J., 4th Dist. Jackson No. 14CA3, 2014-Ohio-5841,
¶46 ("[substantial compliance with a case plan is
not necessarily dispositive on the issue of reunification and
does not preclude a grant of permanent custody to a
children's services agency."); see In re
M.H., 4th Dist. Pike No. 17CA882, 2017-Ohio-7365, 2017
WL 3701168, ¶102; In re S.S., 4th Dist. Jackson
No. 16CA7 and 16CA8, 2017-Ohio-2938, ¶164; In re
M.B., 4th Dist. Highland No. 15CA19, 2016-Ohio-793,
¶59; In re N.L., 9th Dist. Summit No. 27784,
2015-Ohio-4165, ¶35 (stating that substantial compliance
with a case plan, in and of itself, does not establish that a
grant of permanent custody to an agency is erroneous");
In re S.C, 8th Dist. Cuyahoga No. 102349,
2015-Ohio-2280, ¶40 ("Compliance with a case plan
is not, in and of itself, dispositive of the issue of
reunification."); In re West, 4th Dist. Athens
No. 03CA20, 2003-Ohio-6299, ¶19. Indeed, because the
trial court's primary focus in a permanent custody
proceeding is the child's best interest, "it is
entirely possible that a parent could complete all of his/her
case plan goals and the trial court still appropriately
terminate his/her parental rights." In re
Gomer, 3rd Dist. Wyandot Nos. 16-03-19, 16-03-20, and
16-03-21, 2004-Ohio-1723, ¶36; accord In re AS,
8th Dist. Cuyahoga No. 100530 and 100531, 2014-Ohio-3035,
¶32. Consequently, even if father complied with the case
plan services, these actions do not necessarily demonstrate
that placing the child in his custody would serve her best
61} Accordingly, based upon the foregoing reasons,
we disagree with the father that the evidence shows that
appellee failed to use reasonable efforts.
WITH FATHER WITHIN A REASONABLE TIME
62} The father next argues that the trial court
erred by concluding that the child could not be placed with
the father within a reasonable time.
63} In the case sub judice, the trial court
determined that R.C. 2151.414(B)(1)(d) applies. The father
does not dispute that the child has been in appellee's
temporary custody for twelve or more months of a consecutive
twenty-two-month period within the meaning of R.C.
2151.414(B)(1)(d). If the court finds that R.C.
2151.414(B)(1)(d) applies, then it need not also find that
the child cannot or should not be placed with either parent
within a reasonable time. E.g., In re C.W., 104 Ohio
St.3d 163, 2004-Ohio-6411, 818 N.E.2d 1176, ¶21; In
re A.M.1, 4th Dist. Athens Nos. 10CA21 through 10CA31,
2010-Ohio-5837, ¶31; In re T.F., 4th Dist.
Pickaway No. 07CA34, 2008-Ohio-1238, ¶23; In re
Williams, 10th Dist. Franklin No. 02AP-924,
2002-Ohio-7205; accord In re J.F., 8th Dist.
Cuyahoga No. 105504, 2018-Ohio-96, 2018 WL 386668, ¶51.
Instead, the statute requires a trial court to find the
existence of only one of the R.C. 2151.414(B) factors.
See In re W.W., 1st Dist. Nos. C-110363 and
C-110402, 2011-Ohio-4912, ¶ 54 (observing that if one of
R.C. 2151.414(B)(1) factors exists, court need not find that
other (B)(1) factors apply). Consequently, any error that may
exist with respect to a reasonable-time finding would not
constitute reversible error. See In re R.S., 4th
Dist. Highland No. 11CA29, 2012-Ohio-2016, 2012 WL 1594247,
¶34. We therefore do not address the father's
64} Accordingly, based upon the foregoing reasons,
we overrule the father's first assignment of error.
65} In his second assignment of error, father argues
that the trial court violated his due process rights by
denying his request that the child to undergo a new
psychological examination. Appellee contends, however, that
the evidence did not justify a new psychological evaluation
and that father does not possess a due process right to
demand that the child undergo a new psychological evaluation.
66} "The right of a natural parent to the care
and custody of his children is one of the most precious and
fundamental in law." In re Adoption of Masa, 23
Ohio St.3d 163, 164, 492 N.E.2d 140 (1986), citing
Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct.
1388, 71 L.Ed.2d 599 (1982); accord Lassiter v. Durham
Cty. Dept. of Social Servs., 452 U.S. 18, 27, 101 S.Ct.
2153, 68 L.Ed.2d 640 (1981), quoting Stanley v.
Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31
L.Ed.2d 551 (1972) (explaining that "a parent's
desire for and right to 'the companionship, care,
custody, and management of his or her children' is an
important interest"); In re C.F., 113 Ohio
St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816, ¶28 (stating
that "[t]he right to parent one's children is a
fundamental right"). Indeed, "the upbringing of
children [is] among [the] associational rights th[e United
States Supreme] Court has ranked as 'of basic importance
in our society.'" MLB. v. S.L.J., 519 U.S.
102, 116-17, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), quoting
Boddie v. Connecticut, 401 U.S. 371, 376, 91 S.Ct.
780, 28 L.Ed.2d 113 (1971) (citations omitted); accord In
re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d
308, 2014 WL 5285371, ¶17, citing MLB., 519
U.S. at 116, 117 S.Ct. 555 ("A parent's relationship
with his or her child is among the 'associational
rights' sheltered by the Fourteenth Amendment to the
United States Constitution against unwarranted usurpation,
disregard, or disrespect by the state."); Lehr v.
Robertson, 463 U.S. 248, 257-58, 103 S.Ct. 2985, 77
L.Ed.2d 614 (1983), quoting Prince v. Massachusetts,
321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645, 88 L.Ed.2d 645
(1944) ("'[T]he custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder.'"). "'[T]he
interest of parents in their relationship with their children
is sufficiently fundamental to come within the finite class
of liberty interests protected by the Fourteenth
Amendment.'" MLB., 519 U.S. at 119, 117
S.Ct. 555, quoting Santosky, 455 U.S. at 774, 102
S.Ct. 1388 (Rehnquist, J., dissenting). Consequently, the
parent-child relationship "'undeniably warrants
deference and, absent a powerful countervailing interest,
protection.'" Lassiter, 452 U.S. at 27, 101
S.Ct. 2153, quoting Stanley v. Illinois, 405 U.S.
645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972);
MLB., 519 U.S. at 116, 117 S.Ct. 555 (stating that
the parent-child relationship deserves "shelter[ ] * * *
against the State's unwarranted usurpation, disregard, or
67} "'[F]ew consequences of judicial action
are so grave as the severance of natural family
ties.'" MLB., 519 U.S. at 119, 117 S.Ct.
555, quoting Santosky, 455 U.S. at 787, 102 S.Ct.
1388 (Rehnquist, J., dissenting). "[P]arental status
termination is 'irretrievably] destructive]' of the
most fundamental family relationship" and permanently
destroys "'all legal recognition of the parental
relationship.'" Id. at 121, 127-28, 117
S.Ct. 555 quoting Santosky, 455 U.S. at 753, 102
S.Ct. 1388, and Rivera, 483 U.S. at 580, 107 S.Ct.
at 3005. Indeed, "permanent termination of parental
rights has been described as 'the family law equivalent
of the death penalty in a criminal case.' In re
Smith (1991), 77 Ohio App.3d 1, 16, 601 N.E.2d 45, 54.
Therefore, parents 'must be afforded every procedural and
substantive protection the law allows.' Id." In
re B.C., 141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d
308, ¶19, quoting In re Hayes, 79 Ohio St.3d
46, 48, 679 N.E.2d 680 (1997). Thus, "'state
intervention to terminate [a parent-child] relationship * * *
must be accomplished by procedures meeting the requisites of
the Due Process Clause.'" Lehr, 463 U.S. at
258, 103 S.Ct. 2985, quoting Santosky, 455 U.S. at
752, 102 S.Ct. 1388; B.C. at ¶17 ("In the
context of termination of parental rights, due process
requires that the state's procedural safeguards ensure
that the termination proceeding is fundamentally
68} The Due Process Clause contained in the
Fourteenth Amendment to the United States Constitution
states: "No State shall * * * deprive any person of
life, liberty, or property, without due process of law * *
*." The Due Course of Law Clause in Article I, Section
16 of the Ohio Constitution provides: "All courts shall
be open, and every person, for an injury done him in his
land, goods, person, or reputation, shall have remedy by due
course of law, and shall have justice administered without
denial or delay." The two clauses provide equivalent due
process protections. State v. Aalim, 150 Ohio St.3d
489, 2017-Ohio-2956, 83 N.E.3d 883, ¶15; State v.
Hand, 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448,
¶11; Direct Plumbing Supply Co. v. Dayton, 138
Ohio St. 540, 544-545, 38 N.E.2d 70 (1941).
69} "Procedural due process imposes constraints
on governmental decisions which deprive individuals of
'liberty' or 'property' interests within the
meaning of the Due Process Clause of the Fifth or Fourteenth
Amendment." Mathews v. Eldridge, 424 U.S. 319,
332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). "'[D]ue
process' has never been, and perhaps can never be,
precisely defined." Lassiter, 452 U.S. at 24,
101 S.Ct. 2153. Instead, due process is "a flexible
concept that varies depending on the importance attached to
the interest at stake and the particular circumstances under
which the deprivation may occur." Aalim at
¶22, citing Walters v. Natl. Assn. of Radiation
Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d
220 (1985). "Applying the Due Process Clause is
therefore an uncertain enterprise which must discover what
'fundamental fairness' consists of in a particular
situation by first considering any relevant precedents and
then by assessing the several interests that are at
stake." Lassiter, 452 U.S. at 24-25, 101 S.Ct.
2153; accord Aalim at ¶22; In re B.C.,
141 Ohio St.3d 55, 2014-Ohio-4558, 21 N.E.3d 308, ¶17,
citing Santosky, 455 U.S. at 753-754, 102 S.Ct. 1388
("In the context of termination of parental rights, due
process requires that the state's procedural safeguards
ensure that the termination proceeding is fundamentally
fair"). "The fundamental requirements] of due
process [are notice and] the opportunity to be heard 'at
a meaningful time and in a meaningful manner.'"
Eldridge, 424 U.S. at 333, 96 S.Ct. 893, quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.
1187, 14 L.Ed.2d 62 (1965); B.C. at ¶17.
70} Determining what process is due and whether a
parental rights termination proceeding is fundamentally fair
generally requires courts to consider three factors:
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement would entail.
Eldridge, 424 U.S. at 335, 96 S.Ct. 893; accord
Lassiter, 452 U.S. at 27, 101 S.Ct. 2153; B.C.
71} In the case at bar, we recognize that father
possesses a significant private interest in the care,
custody, and control of his child. See Troxel v.
Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d
49 (2000) (recognizing parents' interest in the care,
custody, and control of child "is perhaps the oldest of
the fundamental liberty interests recognized by this
Court"). "But it is not only [the father]'s
private interest that we must consider." B.C.
at ¶20. Instead, "'"the natural rights of
a parent are not absolute, but are always subject to the
ultimate welfare of the child, which is the polestar or
controlling principle to be observed."'"
Id., quoting In re Cunningham, 59 Ohio
St.2d 100, 106, 391 N.E.2d 1034 (1979), quoting In re R.
J.C, 300 So.2d 54, 58 (Fla.App.1974).
Accordingly, "parental interests are subordinate to the
child's interest when determining the appropriate
resolution of a petition to terminate parental rights."
72} In addition to examining a parent's interest
in a parental-rights-termination action, courts also must
consider the child's interest. Id. In the case
sub judice, the child, at least initially, may have had an
interest in preserving her familial relationship. However,
the child later made it clear that she no longer wishes to
preserve her relationship with her father and would like the
foster parents to adopt her. The child indicated that she is
fearful of her father and has threatened to harm herself if
placed in his custody. Thus, her interest is "a
permanent placement in a stable, secure, and nurturing home
without undue delay." Id., citing In re
Adoption of Zschach, 75 Ohio St.3d 648, 651, 665 N.E.2d
1070 (1996). For "'[t]here is little that can be as
detrimental to a child's sound development as uncertainty
over whether [s]he is to remain in h[er] current "home,
" under the care of h[er] parents or foster parents,
especially when such uncertainty is prolonged.'"
Id., quoting Lehman v. Lycoming Cty.
Children's Servs. Agency, 458 U.S. 502, 513-514, 102
S.Ct. 3231, 73 L.Ed.2d 928 (1982).
73} In the case at bar, the evidence reveals that
the child has displayed outward signs of distress due to the
reunification process and permanent custody proceedings. The
child's counselor and pediatrician both testified that
the entire process has been detrimental to the child's
mental health. Thus, the child possesses a significant
interest in securing a permanent placement in a stable,
secure, and nurturing home without undue delay. Prolonging
her uncertainty would only continue to be detrimental to her
74} The second Mathews factor evaluates the
risk of erroneous deprivation of father's interest under
the current procedures and the probable value, if any, of
additional or substitute procedural safeguards. Id.
at ¶21. In B.C., the Ohio Supreme Court held
that the current statutory procedures satisfy due process and
minimize the risk of an erroneous deprivation of parental
rights. The court explained:
Procedural safeguards already exist in parental-termination
cases. R.C. Chapter 2151 contains the procedures for cases
involving juveniles, including the award of permanent custody
of a child away from the natural parents. R.C. 2151.01
requires courts to construe those provisions liberally in
favor of retaining the family unit, "separating the
child from the child's parents only when necessary for
the child's welfare or in the interests of public
safety." R.C. 2151.01(A). Division (B) further provides
that the purpose of the statutes is also to "provide
judicial procedures * * * in which the parties are assured of
a fair hearing, and their constitutional and other legal
rights are recognized and enforced." For example, R.C.
2151.35(A)(2) requires testimony and other oral proceedings
to be recorded; R.C. 2151.35(C) ensures parental notice of
adjudicatory and dispositional hearings; R.C. 2151.352 gives
the parent a right to appointed counsel; R.C. 2151.353(B)
provides that when a motion for temporary or permanent
custody is filed, parents shall be provided a full
explanation that permanent custody permanently divests the
parents of all rights and that temporary custody is the
removal of the child from their legal custody.
R.C. 2151.414 sets forth the procedures that follow the
filing of a motion for permanent custody, many of which are
designed to protect the parent's interest in retaining
the parent-child relationship. A hearing is required to be
held within 120 days. R.C. 2151.414(A)(1). The agency moving
for permanent custody must by clear and convincing evidence
prove that the grant of permanent custody is in the best
interest of the child. R.C. 2151.414(B)(1). Before awarding
permanent custody, the court is required to consider all
relevant factors, including the child's interaction and
relationship with the parent. R.C. 2151.414(D)(1). A written
report from a guardian ad litem must be submitted to the
court before the hearing under R.C. 2151.414(C). Portions of
the statute require clear and convincing evidence when the
child cannot be placed with either parent within a reasonable
period of time. R.C. 2151.414(D) and (E). The agency is
required to prove that it used reasonable efforts to reunite
parent and child. R.C. 2151.419(A)(1).
In summation, statutory protections already ensure that a
parent faced with termination of parental rights has the
opportunity to participate in the proceedings fully, with
notice, representation, and the remedy of an appeal. We
therefore hold that Ohio's current procedures comport
with due process * * *.
B.C. at ¶¶ 25-27.
75} Two decades before B.C., the Third
District Court of Appeals determined that the risk of an
erroneous determination regarding a parent's mental
health appears high when the parent does not have the
resources to counter the state's expert psychiatric
evidence. In re Shaeffer Children, 85 Ohio App.3d
683, 690, 621 N.E.2d 426 (3rd Dist.1993). The court
explained: "Psychiatry is not an exact science, and
psychiatrists disagree widely and frequently on what
constitutes mental illness, on the appropriate diagnosis to
be attached to given behavior and symptoms, and on the cure
and treatment." Id. The court thus determined
"that the assistance of a psychiatrist to conduct an
examination, to testify, and to aid in preparing the
cross-examination of the state's psychiatric expert
witness would greatly reduce the risk of an erroneous
determination on the mental health issue." Id.
76} In the case at bar, we do not believe that
permitting father to force his child to undergo an updated
psychological evaluation is necessary to prevent an erroneous
deprivation of his parental rights. The child has been in
counseling since shortly after appellee obtained temporary
custody. Father believed that the child should undergo a new
psychological evaluation in order to determine the cause of
her suicidal ideations. The child, however, made it clear why
she had suicidal ideations-her fear of being placed in her
father's custody. Thus, unlike Shaeffer, the
case sub judice does not involve potentially differing
psychiatric diagnoses, but instead the evidence is clear that
the child's suicidal ideations resulted from her fear of
being placed in father's custody. Moreover, father does
not explain how an updated psychological evaluation would
change this fact. Consequently, we do not believe that
forcing the child to undergo an updated psychological
evaluation is necessary to reduce the risk of an erroneous
deprivation of father's parental rights.
77} The final Mathews factor is the
government's interest, including the function involved
and the fiscal or administrative burdens of providing
additional or substitute procedural requirements. "The
government's interest is twofold. First, the state has an
interest in minimizing fiscal and administrative costs."
B.C. at ¶23. However, this interest does not
override father's significant private interest in the
right to a relationship with his child. Id.
"Second, the state has an interest in the function
involved in these cases, i.e., the state's role as parens
patriae in promoting the welfare of the child."
78} In the case at bar, we believe that the
state's interest in promoting the child's welfare
overrides father's private interest in his right to a
relationship with his child. The reunification process and
permanent custody proceedings have placed the child in a
fragile emotional state, and she has consistently expressed
her desire for the proceedings to end. Unfortunately, father
fails to realize that what is best for him is not necessarily
best for his child. While father's continued fight for
his child may indicate that he deeply and sincerely loves his
child, this case has reached the point of continued harm to
the child. Consequently, under the circumstances present in
the case at bar, we do not believe that due process mandates
an updated psychological evaluation.
79} Accordingly, based upon the foregoing reasons,
we overrule father's second assignment of error.
80} In his third assignment of error, father
challenges the trial court's factual findings regarding
his mental health diagnosis. Father contends that the court
relied upon an outdated psychological evaluation and
incorrectly determined that he suffers from narcissistic
personality disorder. He further ...