FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 16JC49445
E. FERGUSON, Attorney at Law, for Appellant.
P. WILL, Prosecuting Attorney, and PREETHI KISHMAN, Assistant
Prosecuting Attorney, for Appellee.
CARLIN, Guardian ad Litem.
MICHAEL TOWNE, Guardain ad Litem.
DECISION AND JOURNAL ENTRY
S. CALLAHAN, JUDGE.
Appellant Mother appeals the judgment of the Lorain County
Court of Common Pleas, Juvenile Division, that terminated her
parental rights and awarded permanent custody of the child,
K.C., to appellee Lorain County Children Services
("LCCS"). This Court affirms.
Mother is the biological mother of a son, K.C. (d.o.b.
3/14/11). Father has never been involved in the child's
life, and he has not appealed the award of permanent custody.
Mother is also the biological mother of two older daughters
who were placed in the custody of their maternal grandmother
("Grandmother"). LCCS became involved with K.C.
after Grandmother contacted the agency to inform it that she
no longer wished to maintain the younger daughter in her
home. Knowing that Mother had K.C. in her home, the agency
investigated in hopes of placing the younger daughter in
Mother's care. During its investigation, however, LCCS
became concerned about the health and well-being of K.C. The
then four-year- old child was nonverbal, and Mother and the
child appeared to have no engagement with one another.
Mother's affect and behavior indicated that she had
mental health issues. In addition, there was almost no food
in the home, and Mother was not scheduled to receive any
additional monetary benefits for several days. The agency
opened a case and worked informally with Mother for more than
a year to help her learn how to meet the basic needs of the
child to keep him safe and on track developmentally.
Based on her mental health issues, Mother continued receiving
services from a community psychiatric supportive treatment
case manager at Nord Center, as well as a money management
caseworker from El Centro de Servicios Sociales. Despite
these services, as well as LCCS' interventions to
facilitate the child's evaluation and enrollment in early
education services, to counsel and redirect Mother during
frequent home visits, and to assist Mother with shopping and
transportation, Mother continued to struggle. Issues
regarding the lack of food in Mother's home, her failure
to follow through with speech services for K.C., her failure
to interact with the child, and her lack of insight regarding
these problems persisted.
LCCS filed a complaint alleging neglect and dependency, but
retained the child in his home with Mother. Thereafter, K.C.
was adjudicated a neglected and dependent child and placed in
the temporary custody of LCCS. The agency then removed K.C.
from Mother's home and placed him in a foster home.
Approximately ten months later, LCCS filed a motion for
permanent custody. After a two-day hearing, the juvenile
court issued a judgment granting permanent custody of K.C. to
LCCS and terminating all parental rights. Mother filed a
timely appeal in which she raises one assignment of error for
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY FINDING
IT WAS IN THE BEST INTERESTS OF THE CHILD K.C. TO BE PLACED
IN THE PERMANENT CUSTODY OF LCCS EVEN THOUGH IT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.
Mother argues that the juvenile court's judgment awarding
permanent custody of K.C. to LCCS was against the manifest
weight of the evidence.
In considering whether the juvenile court's judgment is
against the manifest weight of the evidence, this 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
[hearing] ordered." (Internal quotations and citations
omitted.) Eastley v. Volkman, 132 Ohio St.3d 328,
2012-Ohio-2179, ¶ 20. When weighing the evidence, this
Court "must always be mindful of the presumption in
favor of the finder of fact." Id. at ¶ 21.
Before a juvenile court may terminate parental rights and
award permanent custody of a child to a proper moving agency,
it must find clear and convincing evidence of both prongs of
the permanent custody test: (1) that the child is abandoned;
orphaned; has been in the temporary custody of the agency for
at least 12 months of a consecutive 22-month period; the
child or another child of the same parent has been
adjudicated abused, neglected, or dependent three times; or
that the child cannot be placed with either parent, based on
an analysis under R.C. 2151.414(E); and (2) that the grant of
permanent custody to the agency is in the best interest of
the child, based on an analysis under R.C. 2151.414(D)(1).
R.C. 2151.414(B)(1) and 2151.414(B)(2); see also In re
William S., 75 Ohio St.3d 95, 98-99 (1996). The best
interest factors include: the interaction and
interrelationships of the child, the wishes of the child, the
custodial history of the child, the child's need for
permanence and whether that can be achieved without a grant
of permanent custody, and whether any of the factors outlined
in R.C. 2151.414(E)(7)-(11) apply. R.C.
2151.414(D)(1)(a)-(e); see also In re R.G., 9th
Dist. Summit Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11.
Clear and convincing evidence is that which will
"produce in the mind of the trier of facts a firm belief
or conviction as to the facts sought to be established."
(Internal quotations omitted.) In re Adoption of
Holcomb, 18 Ohio St.3d 361, 368 (1985), quoting
Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph
three of the syllabus.
In this case, by the plain language of her stated assignment
of error, Mother purports to challenge solely the juvenile
court's second-prong finding that an award of permanent
custody was in the child's best interest. Rather than
focusing her argument on the best interest factors, however,
Mother addresses matters more relevant to the juvenile
court's first-prong finding that K.C. cannot be placed
with her within a reasonable time or should not be placed
with her. In fact, Mother concludes her discussion by
asserting that she "believes that there is not clear and
convincing evidence that K.C. could not or should not be
placed with her within a reasonable period of time."
Because of the significant fundamental interests implicated
when a parent loses custody of a child, as well as facts
which are arguably relevant to both a first-prong and
second-prong discussion, this Court will conduct a manifest
weight analysis regarding both prongs of the permanent
custody test. To the extent that Mother has raised the issue
of plain error, she has failed to make any argument in that
regard. Instead, she merely cites law relevant to such a
discussion. Accordingly, we decline to consider whether the
juvenile court committed plain error in awarding permanent
custody of K.C. to LCCS.
In its motion for permanent custody, LCCS alleged the sole
first-prong ground that K.C. cannot be placed with either
parent within a reasonable time or should not be placed with
either parent pursuant to R.C. 2151.414(B)(1)(a). In support,
the agency alleged only two Subsection (E) factors relative
to Mother. Specifically, it alleged that (1) Mother had
"failed to substantially remedy the problems that
initially caused the child to be placed outside of the home *
* *, pursuant to R.C. 2151.414(E)(1);" and (2) Mother
"suffers from chronic mental illness, chronic emotional
illness, intellectual disability, that is so severe that it
makes [her] unable to provide an adequate permanent home for
the child pursuant to R.C. 2151.414(E)(2)[.]" As to
Father, the agency alleged his failure to remedy problems