[Cite as In re A.S., 2012-Ohio-3197.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

IN THE MATTER OF: 

 A.S. CASE NO. 1-12-01 

ADJUDICATED DEPENDENT CHILD, 

 O P I N I O N 

[JENNIFER ALEXANDER - 

 APPELLANT]. 

 

IN THE MATTER OF: 

 M.M. CASE NO. 1-12-02 

ADJUDICATED DEPENDENT CHILD, 

 O P I N I O N 

[JENNIFER ALEXANDER - 

 APPELLANT]. 

 

Appeals from Allen County Common Pleas Court 

Juvenile Division 

Trial Court Nos. 2010JG27309 and 2010JG27310 

Judgments Affirmed 

Date of Decision: July 16, 2012 

 
Case Nos. 1-12-01 and 1-12-032 

-2- 

APPEARANCES: 

Sarah N. Newland for Appellant/Mother 

Mariah M. Cunningham for Appellee, Allen Co. Children’s Services 

Keith Schierloh for Appellee/Father 

Marie A. Von der Embse for Appellees/Minor Children 

SHAW, P.J. 

{¶1} Mother-appellant Jennifer Alexander (“Jennifer”) appeals the 

December 20, 2011 judgment of the Allen County Court of Common Pleas, 

Juvenile Division, awarding permanent custody of her two minor children, A.S. 

and M.M., to the Allen County Children’s Services Board (hereinafter “ACCSB” 

or “the agency”). 

{¶2} The facts relevant to this appeal are as follows. Jennifer is the mother 

of A.S., born August, 2008, and M.M., born October, 2009. David Thompson was 

determined to be the father of the two children. 

{¶3} On January 17, 2010 an incident occurred wherein M.M., not yet three 

months old, was in a baby swing crying. Jennifer kicked the baby swing holding 

M.M., nearly toppling the swing, and Jennifer threatened to shake M.M. 

Jennifer’s sister Stacy attempted to intervene to protect M.M. and when Stacy did 
Case Nos. 1-12-01 and 1-12-032 

-3- 

intervene, Jennifer assaulted Stacy and threatened to kill her. Jennifer’s other 

child A.S., who was one year old, was present at the time of the incident. As a 

result of the incident, the police were called and Jennifer was arrested for domestic 

violence. 

{¶4} Following the incident, on January 29, 2010, Allen County Children 

Services Board filed two complaints. The first complaint alleged that A.S. was a 

dependent child and the second complaint alleged that M.M. was a dependent and 

neglected child. (Doc. 2, 2).1

 

{¶5} On February 2, 2010, in order to protect the best interests of the 

children, Marie Von der Embse was appointed as Guardian Ad Litem (“GAL”) for 

the two children. (Doc. 7, 8). 

{¶6} On February 3, 2010, a “shelter care” hearing was held. Despite being 

notified of the hearing, Jennifer did not attend. From the testimony presented at 

the hearing the magistrate found that Jennifer refused to cooperate with the 

ACCSB caseworker and at times would not even talk to her. (Docs. 13, 15). 

Further, the magistrate found that Jennifer refused to approve a safety plan 

proposed by the agency and that Jennifer missed a meeting at the agency. (Id.) 

On February 4, 2010, pursuant to the magistrate’s order, both A.S. and M.M. were 

placed in the shelter care of ACCSB. (Id.) A.S. and M.M. were subsequently 

 

1

 The first document number in the series cited here and afterward throughout this opinion corresponds to 

the case file pertaining to A.S. and the second document number corresponds to the case file pertaining to 

M.M. 
Case Nos. 1-12-01 and 1-12-032 

-4- 

placed in the foster home of Danielle Kohler (“Kohler”), where the children have 

since remained. 

{¶7} On February 26, 2010, a case plan was filed. (Doc. 18, 22). As part 

of the case plan Jennifer was required to complete a mental health assessment and 

follow recommendations, complete agency approved parenting classes, complete 

random urine screens, provide for the children’s basic needs, complete an 

assessment for anger management services, have no unsupervised contact with her 

daughters, have no further incidents of domestic violence, and work with Help Me 

Grow services. (Id.) 

{¶8} On March 10, 2010 a hearing was held on the agency’s complaints to 

determine whether A.S. was dependent and to determine whether M.M. was 

dependent and neglected. Despite being notified of the hearing, Jennifer did not 

attend. At the hearing, testimony was provided by investigative caseworker 

Sharon Fenton of ACCSB and Officer Trent Kunkleman who was the responding 

officer for the domestic violence incident wherein Jennifer kicked the baby swing 

holding M.M. 

{¶9} On March 12, 2010, the magistrate’s decisions were issued finding 

both A.S. and M.M. dependent pursuant to R.C. 2151.04. (Docs. 23, 24) M.M. 

was not found neglected. (Id.) 
Case Nos. 1-12-01 and 1-12-032 

-5- 

{¶10} On April 16, 2010, the trial court adopted the findings of fact and 

conclusions of law contained in the magistrate’s decisions finding that A.S. and 

M.M. were dependent children. (Docs. 27, 31). Further, the trial court found that 

there was reasonable cause for issuance of the shelter care order previously filed, 

and that reasonable efforts had been made by ACCSB to “eliminate continued 

removal of the minor child[ren] from the home.” (Id.) 

{¶11} On April 26, 2010 the trial court adopted the findings of the 

magistrate placing the children in the temporary custody of ACCSB and the 

February 26, 2010 case plan was made the order of the court. (Docs. 38, 30). 

{¶12} On December 28, 2010, ACCSB filed motions to extend temporary 

custody of A.S. and M.M. (Docs. 30, 34). On March 14, 2011, a hearing was held 

on the motion to extend temporary custody. On March 16, 2011, the magistrate 

issued a decision extending temporary custody. (Docs. 40, 45). In that decision, 

the magistrate found that Jennifer was released from incarceration in Marysville in 

October of 2010, that Jennifer had failed to take all required random urine screens, 

and that Jennifer was not visiting the children consistently. (Id.) Therefore 

temporary custody was extended “because the mother was incarcerated and needs 

additional time to complete case plan services.” (Id.) On May 25, 2011, the 

magistrate’s decision was adopted by the trial court, extending temporary custody 

for an additional six month period. (Docs. 41, 47). 
Case Nos. 1-12-01 and 1-12-032 

-6- 

{¶13} On June 22, 2011, ACCSB filed motions requesting permanent 

custody for A.S. and M.M. (Docs. 43, 49). 

{¶14} On November 29, 2011, Jennifer filed motions for legal custody of 

A.S. and M.M. On December 6, 2011, Jennifer filed amended motions for legal 

custody, requesting legal custody or, in the alternative, temporary custody of A.S. 

and M.M. 

{¶15} On December 1, 2011, the GAL filed a report and recommendation 

regarding A.S. and M.M., recommending that ACCSB be granted permanent 

custody of both of the children. (Docs. 76, 76). 

{¶16} On December 7, 2011, the hearing on ACCSB’s permanent custody 

motion and Jennifer’s custody motions was held. At the hearing ACCSB first 

called Judy Lester, a SAFY Behavioral Services therapist. Lester testified that 

A.S. has a “sensory integration disorder” which causes abnormal melt downs and 

that A.S. “has difficulties with sensory information coming into her brain.” (Tr. at 

6). Lester testified that A.S. would need special care and because of this, Lester 

testified, A.S. needs an adult to be well regulated. (Tr. at 10, 14). 

{¶17} Next, Danielle Kohler, the foster mother, testified that she had been a 

licensed foster parent for 6 years, that she had taken care of A.S. and M.M. for 

roughly 22 months, and that she desired to adopt the two children. (Tr. at 30, 54-

55). Kohler testified to the difficulties in dealing with A.S.’s sensory disorder, 
Case Nos. 1-12-01 and 1-12-032 

-7- 

stating that A.S. has to see multiple doctors and that A.S. needs a structured 

environment. (Tr. at 33-35). Kohler testified that she carries a binder with her at 

all times to help her deal with A.S.’s disorder. (Tr. at 33). Kohler further testified 

to a typical day involving A.S., which includes listening therapy, and brushing 

therapy2

, and on some days, trips to the occupational therapist in Toledo. (Tr. at 

38-40). Kohler testified that she had talked about these things with Jennifer and 

had showed Jennifer the “brushing” technique, but Kohler said she was “not sure 

that [Jennifer] understood.” (Tr. at 43). Kohler further testified that she sees 

similar problems to A.S. developing in M.M., though M.M. has not been 

diagnosed with a sensory disorder. (Tr. at 44-45). 

{¶18} Kohler testified that A.S. and M.M. were integrated into her home 

and that they were effectively “siblings” with the other children. (Tr. at 52). 

Finally, Kohler testified to one incident where Jennifer cancelled an agency visit 

and Jennifer said to Kohler via text message that “she couldn’t do it anymore.” 

(Tr. at 47). 

{¶19} Amber Martin, the caseworker from ACCSB, testified at the hearing 

that although Jennifer had complied with some parts of the case plan, she had not 

fulfilled it. Martin testified that Jennifer was required to complete a mental health 

assessment and comply with any recommendations from that assessment. (Tr. at 

 

2

 According to Kohler, brushing therapy is done on A.S. every two hours and encompasses using a 

“surgical brush” to “brush her arms, legs, her back in the specific order, and specific way. And then you do 

joint compressions on her hips, knees, ankles, shoulders, elbows and wrists.” (Tr. at 36). 
Case Nos. 1-12-01 and 1-12-032 

-8- 

71). Martin testified that Jennifer completed the assessment and it was 

recommended that Jennifer undertake Moral Recognition Therapy, which Jennifer 

completed. However, Martin expressed concerns that after going through the 

class, Jennifer was arrested for, and convicted of, theft from her employer Little 

Caesars. 

{¶20} Martin testified that Jennifer completed some of the urine screens she 

was required to take, though Jennifer only took 8 of the 21 screens, passing those 

that she took. (Tr. at 73). Martin testified that for the majority of the tests Jennifer 

failed to take, Jennifer gave no reasons why she did not take them, but when 

Jennifer did give reasons she said that she had “lost the mail, the piece of paper. 

She didn’t have transportation and forgot.” (Tr. at 75). 

{¶21} Martin further testified that during the pendency of these proceedings 

Jennifer was incarcerated twice, the first time being from February 2010 until 

October 2010, and the second time being from October 2011 until November of 

2011.3

 (Tr. at 76). 

{¶22} Martin then testified that there were concerns with Jennifer being 

able to provide for the basic needs of the children. (Tr. at 78). These concerns 

included the fact that Jennifer had not maintained a residence, moving nine times 

 

3

 Martin testified that she believed the first incarceration was due to a parole violation based on the 

domestic violence incident. Cross examination by Jennifer’s attorney seems to imply that Jennifer was 

convicted of Persistent Disorderly Conduct out of the earlier incident of domestic violence. According to 

Martin, the second period of incarceration resulted from Jennifer’s theft from Little Caesars. 
Case Nos. 1-12-01 and 1-12-032 

-9- 

throughout these proceedings.4

 Martin testified that shortly before the final 

hearing, Jennifer had taken Martin to an apartment Jennifer claimed she would be 

renting, but the apartment was empty and no lease had been signed up to the time 

of the hearing. (Tr. at 83). Martin also testified that Jennifer’s current boyfriend 

and the father to her unborn child, Todd Wilson, was planning to live with her at 

the new residence. (Tr. at 145). Martin testified that the agency had received 

reports of domestic violence between Todd Wilson and Jennifer. (Id.) 

{¶23} Martin testified that Jennifer did not show the ability to meet her own 

financial needs as she had only been employed for about three weeks at Little 

Caesars since April of 2010. Martin also testified that Jennifer exercised her 

supervised visitation times inconsistently in “spurts.” (Tr. at 89). According to 

Martin, Jennifer was late or missed twenty-six visits with the children in a fourteen 

month period. (Id. at 90). Martin testified that Jennifer’s reasons for missing or 

being late included, “[s]lept in, sick has been several times, one time she was 

having her taxes done, a train one time made her late.” (Tr. at 90). Martin 

testified that after a period of weeks where Jennifer missed visitation, A.S. was 

hesitant to go back and she “saw an increase of behaviors [of A.S.] into visitation, 

pulling out hair, biting, acting out after visits.” (Tr. at 91). 

 

4

 Some of these moves were back and forth to various correctional institutions and back and forth to her 

father’s home. Martin testified that in one apartment that Jennifer resided in, her electric was turned off for 

failure to pay the bill. (Tr. at 85). 
Case Nos. 1-12-01 and 1-12-032 

-10- 

{¶24} In conclusion, Martin testified that she did not believe A.S. or M.M. 

could be placed with Jennifer within a reasonable time, stating “[a]t this time, 

[Jennifer] still does not have a home, a lease, income is still unknown, there is not 

a regular income. There is still some inconsistency with visitation and [A.S.]’s 

needs level has increased * * *[.]” (Tr. at 103). ACCSB then rested its case. 

{¶25} Jennifer then testified at the hearing, arguing that she should get legal 

custody of A.S. and M.M., or in the alternative, temporary custody of the two 

children. Jennifer testified that she had verbally agreed to rent an apartment but 

had not signed a lease yet. (Tr. at 148). Jennifer also testified that she was 

attempting to get financial assistance through the State. (Tr. at 150). Jennifer 

testified that she was pregnant by her boyfriend Todd and looking for a job. (Tr. 

at 172). Jennifer also testified that her boyfriend Todd had been convicted of two 

counts of Drug Trafficking, and Jennifer testified she was aware that Todd had 

been convicted of two counts of domestic violence. (Tr. at 174). 

{¶26} After Jennifer testified, David Thompson, the father of the two 

children testified. Thompson testified he had only seen A.S. once and had never 

seen M.M. According to the GAL report, Thompson had 10 kids and did not want 

to, or have the means to, take custody of the two children. 
Case Nos. 1-12-01 and 1-12-032 

-11- 

{¶27} Following Thompson’s testimony, the GAL made a statement in 

closing arguing for permanent custody to be awarded to ACCSB. After closing 

arguments, the case was submitted for the court’s decision. 

{¶28} On December 20, 2011, two judgment entries were filed awarding 

permanent custody to ACCSB for both A.S. and M.M. The court found in 

separate judgment entries for each child that each child could not be placed with 

either parent within a reasonable period of time and that the children had been in 

the temporary custody of ACCSB for twelve or more months of a consecutive 

twenty-two month period. (Docs. 81, 79). The court found that the children were 

in need of legally secure permanent placement and that they had been fully 

integrated into the Kohler foster home. (Id.) The court found upon consideration 

of the factors enumerated in R.C. 2141.414 that an award of permanent custody to 

ACCSB was in the children’s best interests. (Id.) 

{¶29} It is from the December 21, 2011 judgment entries that Jennifer 

appeals, asserting the following assignments of error for our review. 

ASSIGNMENT OF ERROR 1 

THE TRIAL COURT ERRED IN FINDING THAT THE 

MINOR CHILDREN COULD NOT BE RETURNED TO 

MOTHER WITHIN A REASONABLE TIME PURSUANT TO 

R.C. 2151.414(E). 

ASSIGNMENT OF ERROR 2 

THE TRIAL COURT ERRED IN FINDING THAT IT WAS IN 

THE CHILDREN’S BEST INTEREST TO TERMINATE THE 
Case Nos. 1-12-01 and 1-12-032 

-12- 

MOTHER’S PARENTAL RIGHTS AND PLACE THE 

CHILDREN IN THE PERMANENT CUSTODY OF THE 

ALLEN COUNTY CHILDREN SERVICES BOARD. 

ASSIGNMENT OF ERROR 3 

THE TRIAL COURT ERRED IN FINDING THE MINOR 

CHILDREN DEPENDENT AS DEFINED IN R.C. 2151.04(B) 

AS THIS WAS NOT ALLEGED IN THE COMPLAINT FILED 

BY THE ALLEN COUNTY CHILDREN SERVICES BOARD. 

First Assignment of Error 

{¶30} In Jennifer’s first assignment of error, she argues that the trial court 

erred in finding that the children could not be returned to Jennifer within a 

reasonable time. Specifically Jennifer claims, inter alia, that she was in the 

process of acquiring an apartment and securing funds to support A.S. and M.M. 

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

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

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

St.3d 46, 48 (1997). The Supreme Court of Ohio has held that a parent “must be 

afforded every procedural and substantive protection the law allows.” In re Hayes,

supra, quoting In re Smith, 77 Ohio App.3d 1, 16 (6th Dist. 1991) Thus, it is with 

these constructs in mind that we proceed to determine whether the trial court erred 

in granting permanent custody of the children to the agency. 

{¶32} Section 2151.414(B)(1) of the Revised Code provides, inter alia, that 

a trial court 
Case Nos. 1-12-01 and 1-12-032 

-13- 

may grant permanent custody of a child to a movant if the court 

determines at the hearing held pursuant to division (A) of this 

section, by clear and convincing evidence, that it is in the best 

interest of the child to grant permanent custody of the child to 

the agency that filed the motion for permanent custody and that 

any of the following apply:

(a) The child is not abandoned or orphaned, 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, * * * 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-twomonth 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 * * * the child was previously in 

the temporary custody of an equivalent agency in another state.

R.C. 2151.414(B)(1)(a-d). 

 

{¶33} The Supreme Court of Ohio has held that “[c]lear and convincing 

evidence is that measure or degree of proof which will produce in the mind of the 

trier of facts a firm belief or conviction as to the allegations sought to be 

established.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954). Further, “[i]t is 

intermediate; being more than a mere preponderance, but not to the extent of such 
Case Nos. 1-12-01 and 1-12-032 

-14- 

certainty as is required beyond a reasonable doubt as in criminal cases. It does not 

mean clear and unequivocal.” Id., citing Merrick v. Ditzler, 91 Ohio St. 256 

(1915). In addition, when “the degree of proof required to sustain an issue must 

be clear and convincing, a reviewing court will examine the record to determine 

whether the trier of facts had sufficient evidence before it to satisfy the requisite 

degree of proof.” Cross, supra (citations omitted); see, also, In re Adoption of 

Holcomb, 18 Ohio St.3d 361, 368 (1985). 

{¶34} At the outset, we note that Jennifer does not dispute the finding of 

the trial court that the children have been in the agency’s temporary custody in 

excess of the required twelve or more months in a consecutive twenty-two-month 

period, which would satisfy R.C. 2151.414(B)(1)(d).5

 Pursuant to the plain 

language of R.C. 2151.414(B)(1)(d), when a child has been in an agency’s 

temporary custody for twelve or more months of a consecutive twenty-two month 

period, a trial court need not find that the child cannot or should not be placed with 

either parent within a reasonable time. See R.C. 2151.414(B)(1)(d). Therefore, 

the court was not required to go into a “reasonable time” analysis as alleged in 

Jennifer’s appeal as R.C. 2951.414(B)(1)(d) was satisfied. 

{¶35} However, the court made the additional finding that the children 

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

 

5

 Jennifer’s brief, in the “Statement of Facts” specifically reads “[t]he minor children resided with the same 

foster family for approximately twenty-two months.” (Appt. Br. at 3). 
Case Nos. 1-12-01 and 1-12-032 

-15- 

placed with either parent. R.C. 2151.414(B)(1)(a). The assignment of error raised 

is related to this additional finding by the trial court, therefore, in the interest of 

justice we will address the argument made regarding the adequacy of that specific 

finding. 

{¶36} In regards to making a finding pursuant to R.C. 2151.414(B)(1)(a) 

that the children cannot be placed with either parent within a reasonable time or 

should not be placed with either parent, the Revised Code states: 

(E) In determining at a hearing held pursuant to division (A) of 

this section * * * whether a child cannot be placed with either 

parent within a reasonable period of time or should not be 

placed with the parents, the court shall consider all relevant 

evidence. If the court determines, by clear and convincing 

evidence, at a hearing held pursuant to division (A) of this 

section * * * that one or more of the following exist as to each of 

the child's parents, the court shall enter a finding that the child 

cannot be placed with either parent within a reasonable time or 

should not be placed with either parent:

(1) Following the placement of the child outside the child's 

home and notwithstanding reasonable case planning and diligent 

efforts by the agency to assist the parents to remedy the 

problems that initially caused the child to be placed outside the 

home, the parent has failed continuously and repeatedly to 

substantially remedy the conditions causing the child to be 

placed outside the child's home. In determining whether the 

parents have substantially remedied those conditions, the court 

shall consider parental utilization of medical, psychiatric, 

psychological, and other social and rehabilitative services and 

material resources that were made available to the parents for 

the purpose of changing parental conduct to allow them to 

resume and maintain parental duties.

* * * 
Case Nos. 1-12-01 and 1-12-032 

-16- 

(4) The parent has demonstrated a lack of commitment toward 

the child by failing to regularly support, visit, or communicate 

with the child when able to do so, or by other actions showing an 

unwillingness to provide an adequate permanent home for the 

child;

* * * 

(10) The parent has abandoned the child. 

* * * 

(14) The parent for any reason is unwilling to provide food, 

clothing, shelter, and other basic necessities for the child or to 

prevent the child from suffering physical, emotional, or sexual 

abuse or physical, emotional, or mental neglect. 

(Emphasis Added.) R.C. 2151.414(E)(1, 4, 10, 14). 

{¶37} In addressing the factors in R.C. 2151.414(E), the trial court held the 

following in both judgment entries related to A.S. and M.M.: 

[T]he child cannot be placed with either parent within a 

reasonable period of time and should not be placed with the 

parents. Further, the court finds that following the placement of 

the child outside the child’s home and notwithstanding 

reasonable case planning and diligent efforts by the agency to 

assist the parents to remedy the problems that initially caused 

the child to be placed outside the home, both parents failed 

continuously and repeatedly to substantially remedy the 

conditions causing the child to be placed outside the child’s 

home (O.R.C. 2151.414(E)(1)). Further, the mother and father 

have both demonstrated a lack of commitment toward the child 

by failing to regularly support, visit, or communicate with the 

child when able to do so and by their other actions showing an 

unwillingness to provide an adequate, permanent home for the 

child (O.R.C. 2151.414(E)(4)). Further, the father has 

abandoned the child. (O.R.C. 2151.414(E)(10). Both the mother 
Case Nos. 1-12-01 and 1-12-032 

-17- 

and the father have been unwilling to provide food, clothing, 

shelter and other basic necessities for the child. (O.R.C. 

2151.414(E)(14)). 

(Doc. No. 81, 79). 

{¶38} Jennifer challenges these findings of the trial court, arguing that she 

had complied with parts of the case plan by taking recommended classes and 

taking some drug screens. Jennifer also argues that she had applied for assistance 

from Job and Family Services and would be receiving $435.00 a month in cash 

assistance and $200.00 a month in food stamps. Further, Jennifer argues she was 

in the process of getting an apartment. 

{¶39} While it is true that Jennifer did follow through with some of the case 

plan, the evidence would support the trial court’s finding that she had not 

“substantially” remedied the problems that led to the children’s removal. The only 

job Jennifer had during the pendency of these matters was a three-week stint at 

Little Caesars from which she was apparently fired after stealing from the store. 

Moreover, Jennifer’s arguments regarding the apartment and the cash assistance 

are completely speculative. Jennifer had ample time prior to the final hearing to 

get a job and/or cash assistance and secure a place to live. However, Jennifer was 

only in the process of doing these things with no proof at the hearing that she 

would be getting cash assistance to provide for the kids or that she had signed a 

lease for the apartment. 
Case Nos. 1-12-01 and 1-12-032 

-18- 

{¶40} Furthermore, Jennifer planned on moving in with the father of her 

unborn child, Todd Wilson, who had two prior domestic violence convictions and 

had also been convicted of drug trafficking. Finally, Jennifer only took 8 of 21 

drug screens, and was late to or missed entirely, 26 visits with her children. 

Throughout the time since A.S. and M.M. had been taken from Jennifer, Jennifer 

had been in and out of incarceration and she did not attend many of the hearings in 

this case despite being notified. 

{¶41} Although Jennifer claims that the children could be returned to her 

within a reasonable time, she has produced no concrete evidence of her ability to 

support the children, relying instead on speculative money and claims that 

Jennifer’s father and/or boyfriend would assist her. Based on the record, we find 

that there was clear and convincing evidence to support the finding of the trial 

court. Accordingly, Jennifer’s first assignment of error is overruled. 

Second Assignment of Error

{¶42} In Jennifer’s second assignment of error, she argues that the trial 

court erred in finding that it was in the children’s best interests that permanent 

custody was awarded to ACCSB. Specifically, Jennifer argues that the trial 

court’s finding that the children would be returning to a “virtual stranger” if they 

were returned to their mother was improper. 
Case Nos. 1-12-01 and 1-12-032 

-19- 

{¶43} When determining whether granting permanent custody to the 

agency is in the best interest of the child, the court must consider all of the 

relevant factors listed in R.C. 2151.414(D)(1), including: 

(a) The interaction and interrelationship of the child with the 

child’s parents, siblings, relatives, foster caregivers and out-ofhome providers, and any other person who may significantly 

affect the child; 

(b) The wishes of the child, as expressed directly by the child or 

through the child’s guardian ad litem, with due regard for the 

maturity of the child; 

(c) The custodial history of the child, including whether the 

child has been in the temporary custody of one or more public 

children services agencies * * * for twelve or more months of a 

consecutive twenty-two month period * * *; 

(d) The child’s need for a legally secure permanent placement 

and whether that type of placement can be achieved without a 

grant of permanent custody to the agency; 

(e) Whether any of the factors in divisions (E)(7) to (11) of this 

section apply in relation to the parents and child. 

{¶44} After considering the factors in R.C. 2151.414(D), the trial court 

found that “an award of permanent custody to the Allen County Children Services 

Board [was] in the child[ren]’s best interest. (Docs. 81, 79). 

{¶45} In regards to factor (a), at the final hearing, testimony presented 

established that Jennifer was late to or missed 26 appointments with her children. 

(Tr. at 90). Testimony also established that the inconsistency furthered difficulties 

with A.S.’s behaviors and disorder. (Tr. at 11, 91). Evidence was presented at the 
Case Nos. 1-12-01 and 1-12-032 

-20- 

hearing that A.S. and M.M. were fully integrated into the foster caregivers’ family, 

in which both children had resided together for the majority of their lives. (Tr. at 

52-54, 105-106). Testimony established that the children had been with the foster 

family for 22 months, the majority of the children’s lives. 

{¶46} In regards to factor (b), the children’s wishes were expressed through 

the GAL. The GAL visited with the children and spoke to several family 

members. Based on her investigation, the GAL determined that the best interests 

of A.S. and M.M. would be served by granting permanent custody to ACCSB. 

{¶47} In regards to factor (c), as stated above, A.S. and M.M. had been in 

ACCSB’s custody for more than twelve months of a twenty-two month 

consecutive period at the time ACCSB filed the motions requesting permanent 

custody. 

{¶48} In regards to factor (d), Jennifer had been in and out of jail, had 

moved nine times, had no job, had no income, had no place of residence and was 

preparing to move in with a man with a substantial criminal record. Jennifer did 

not provide any documentation that could support her ability to provide for the 

children. On the contrary, the children’s foster mother, Danielle Kohler, had 

expressed interest in adopting both A.S. and M.M. 
Case Nos. 1-12-01 and 1-12-032 

-21- 

{¶49} In regards to factor (e), none of those factors are applicable to this 

situation.6

{¶50} Based on the foregoing we find that there was clear and convincing 

evidence to support the decision made by the trial court that it was in the 

children’s best interest for permanent custody to be awarded to ACCSB. 

Accordingly Jennifer’s second assignment of error is overruled. 

Third Assignment of Error 

{¶51} In Jennifer’s third assignment of error, she argues that the trial court 

erred in finding the minor children dependent in the original adjudicatory hearing 

pursuant to R.C. 2151.04(B) when, she claims, such an allegation was not 

contained in the complaint. Specifically Jennifer argues that the complaints 

claimed that A.S. and M.M. were dependent pursuant to R.C. 2151.04(C) rather 

than R.C. 2151.04(B) as they were found by the magistrate and the trial court. We 

find that Jennifer’s argument is barred by the doctrine of res judicata. 

{¶52} The doctrine of res judicata has two aspects: claim preclusion and 

issue preclusion. Grava v. Parkman Twp., 73 Ohio St.3d 379, 381, 1995-Ohio331. As to the claim preclusion aspect, this doctrine provides that an existing, 

final judgment between the parties to litigation bars all claims which were litigated 

or could have been litigated in that lawsuit from being relitigated in a later action. 

 

6

 Factor (e)(10) would be relevant to the father as the court found the father had abandoned the children. 

However, this appeal pertains to the mother’s rights, so we decline to address this issue. 
Case Nos. 1-12-01 and 1-12-032 

-22- 

Grava, supra, at 381. This doctrine has been held to apply to appellate 

proceedings in both criminal and civil cases. 

{¶53} In the present case, when A.S. and M.M. were adjudicated as 

dependent children by the magistrate, no objection was made to the magistrate’s 

decision. The magistrate’s decision was later adopted by the trial court, and the 

specific findings of dependency related to each child were made the order of the 

court. No appeal was ever taken from that judgment. The parties then proceeded 

to the permanent custody hearing. The appeal in this case is taken from the 

December 20, 2011 judgment entry awarding permanent custody to ACCSB. 

Under the doctrine of res judicata, Jennifer cannot now claim the magistrate’s 

finding of dependency in the original adjudicatory hearing, and the trial court’s 

adoption of it, as error on appeal. See In re S.J., 9th Dist. No. 23199, 2006-Ohio6381 ¶¶ 14-17. Accordingly, Jennifer’s third assignment of error is overruled. 

{¶54} For the foregoing reasons Jennifer’s assignments of error are 

overruled and the judgments of the Allen County Court of Common Pleas, 

Juvenile Division, are affirmed. 

Judgment Affirmed 

 

PRESTON and WILLAMOWSKI, J.J., concur. 

/jlr