[Cite as In re I.M., 2011-Ohio-560.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

IN THE MATTER OF: : CASE NO. 10CA35 

 : 

I.M. : Released: January 28, 2011 

 : DECISION AND JUDGMENT 

Adjudicated Dependant Child. : ENTRY

_____________________________________________________________ 

APPEARANCES:

James A. Wallace, Athens, Ohio, for Appellant. 

C. David Warren, Athens County Prosecuting Attorney, and George 

Reitmeier, Athens County Assistant Prosecutor, Athens, Ohio, for Appellee. 

_____________________________________________________________ 

McFarland, J.: 

{¶1} Appellant Angel Kasler appeals the decision of the Athens 

County Court of Common Pleas, Juvenile Division, awarding permanent 

custody of her daughter, I.M. to Athens County Children Services. Kasler 

argues there was error below in that the trial court’s decision was not 

supported by clear and convincing evidence. We disagree. The record 

below shows that I.M. could not or should not have been placed with Kasler 

in a reasonable time. Further, there was clear and convincing evidence to 

support the trial court’s finding that it was in I.M.’s best interest to award 

permanent custody to Children Services. Accordingly, we overrule Kasler’s 

assignment of error and affirm the trial court’s decision. 
Athens App. No. 10CA35 2 

I. Facts 

{¶2} Appellant Angel Kasler and Mark McClelland are the 

biological parents of I.M. 1 I.M. was born on October 21, 2009, and was 

approximately six months old at the time of the trial court's decision. On 

October 23, Athens County Children Services obtained emergency custody 

of I.M. and filed a complaint requesting an initial disposition of permanent 

custody. 

{¶3} The trial court held adjudication hearings on the matter in 

November and December of 2009. At those hearings, the court heard 

evidence that Kasler had mental illness issues, and that Kasler and 

McClelland both had substance-abuse issues. Further, two months before 

I.M. was born, drugs and drug paraphernalia were found in Kasler and 

McClelland's home and the home itself was in a filthy condition. Further, 

both parents were under indictment for felony drug offenses at the time of 

the hearings. In January of 2010, the trial court found I.M. to be a dependent 

child. 

{¶4} After the finding of dependency, the trial court held 

disposition hearings on the issue of permanent custody in February of 2010. 

At the conclusion of those hearings, the trial court took the matter under 

 

1

 Mark McClelland has appealed this permanent custody decision separately. 
Athens App. No. 10CA35 3 

advisement. On June 9, 2010, the trial court granted permanent custody of 

I.M. to Athens County Children Services and terminated the parental rights 

of both Angel Kasler and Mark McClelland. Following that decision, Kasler 

timely filed the current appeal. 

II. Assignment of Error 

THE TRIAL COURT’S DETERMINATION THAT GRANTING 

PERMANENT CUSTODY OF I.M. TO ATHENS COUNTY 

CHILDREN SERVICES IS IN HER BEST INTEREST WAS NOT 

SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. 

III. Legal Analysis 

{¶5} An appellate court will not overrule a trial court’s decision 

regarding permanent custody if there is competent and credible evidence to 

support the judgment. In re McCain, 4th Dist. No. 06CA654, 2007-Ohio1429, at ¶8. “If the trial court’s judgment is supported by some competent, 

credible evidence going to all the essential elements of the case, an appellate 

court must affirm the judgment and not substitute its judgment for that of the 

trial court.” In re Buck, 4th Dist. No. 06CA3123, 2007-Ohio-1491, at ¶7. 

Therefore, an appellate court’s review of a decision to award permanent 

custody is deferential. McCain at ¶8. 

{¶6} “An agency seeking permanent custody bears the burden of 

proving its case by clear and convincing evidence.” In re Perry, 4th Dist. 

Nos. 06CA648, 06CA649, 2006-Ohio-6128, at ¶39. Clear and convincing 
Athens App. No. 10CA35 4 

evidence has been defined as “[t]he 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.” McCain at ¶9, citing In re Estate of Haynes (1986), 25 Ohio 

St.3d 101, 103-04, 495 N.E.2d 23. 

{¶7} In her sole assignment of error, Angel Kasler argues that 

awarding permanent custody of I.M. to Children Services was not in I.M.’s 

best interest and the decision was not supported by clear and convincing 

evidence. Accordingly, we first state the appropriate test a trial court must 

apply in ruling on a motion for permanent custody. 

{¶8} Under R.C. 2151.414, an agency seeking permanent custody 

must meet a two-part test before parental rights may be terminated and 

permanent custody awarded. In re Schaefer, 111 Ohio St.3d 498, 2006-

Ohio-5513, 857 N.E.2d 532, at ¶31. Under the first part of the test, one or 

more of conditions listed in R.C. 2151.414(B)(1)(a) through (d) must apply. 

R.C. 2151.414(B)(1)(a) states: 

{¶9} “The child is not abandoned or orphaned, has not been in the 

temporary custody of one or more public children services agencies or 
Athens App. No. 10CA35 5 

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.” 

{¶10} In determining whether a child cannot or should not be placed 

with the parents in a reasonable time, the trial court must refer to 

2151.414(E). Under that section, “If the court determines, by clear and 

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

of the child's parents, the court shall enter a finding that the child cannot be 

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

with either parent[.]” The section then lists 16 factors, including the 

following three: (E)(2) - “Chronic mental illness, chronic emotional illness, 

mental retardation, physical disability, or chemical dependency of the parent 

that is so severe that it makes the parent unable to provide an adequate 

permanent home for the child at the present time and, as anticipated, within 

one year after the court holds the hearing;” (E)(11) - “The parent has had 

parental rights involuntarily terminated with respect to a sibling of the child 

* * * and the parent has failed to provide clear and convincing evidence to 

prove that, notwithstanding the prior termination, the parent can provide a 

legally secure permanent placement and adequate care for the health, 
Athens App. No. 10CA35 6 

welfare, and safety of the child;” and (E)(16) - “Any other factor the court 

considers relevant.” R.C. 2151.414(E). 

{¶11} In the case sub judice, the trial court found that each of the 

three subsections listed above applied to Kasler. Under (E)(2), the court 

found that a combination of Kasler's mental and emotional issues, together 

with her issues of substance abuse, were so severe that she would be unable 

to provide an adequate permanent home for I.M. within a year's time. At the 

time of the disposition hearing, Kasler was suffering from clinical 

depression and panic disorder and taking medication for both. She was also 

taking Subutex, which her doctor had prescribed to help curb her craving for 

heroin. 

{¶12} Under R.C. 2151.414(E)(11), the trial court noted that 

Kasler’s parental rights had been terminated in a recent prior case. Athens 

County Children Services had been granted permanent custody over three 

other children of Kasler within days of the birth of I.M. And the court 

determined that Kasler had failed to prove that she could provide a legally 

secure, safe and healthy placement for I.M. as well. 

{¶13} Finally, under R.C. 2151.414(E)(16), the court noted that 

subsequent to the filing of the motion for permanent custody, Kasler had 

refused, on at least one occasion, to take a drug screen. Further, the court 
Athens App. No. 10CA35 7 

noted that Kasler had failed to sign medical releases, which made it 

impossible for the court “to verify any claims of rehabilitation and give any 

serious consideration to moving in a different direction with this child.” 

{¶14} As such, we agree with the trial court that there were at least 

three bases for determining that I.M. should not or could not be placed with 

Kasler in a reasonable time, any one of which would have been adequate to 

satisfy the first prong of the two-part permanent custody test. Accordingly, 

we turn to the second part of the test, whether permanent custody is in the 

best interest of the child. 

{¶15} An agency seeking permanent custody must demonstrate by 

clear and convincing evidence that such action is in the best interest of the 

child. R.C. 2151.414(D)(1) sets forth the factors a court must consider in the 

best interest analysis: 

{¶16} “(a) The interaction and interrelationship of the child with the 

child’s parents, siblings, relatives, foster caregivers and out-of-home 

providers, and any other person who may significantly affect the child; 

{¶17} (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; 
Athens App. No. 10CA35 8 

{¶18} (c) The custodial history of the child, including whether the 

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

services agencies or private child placing agencies for twelve or more 

months of a consecutive twenty-two-month period, or the child has been in 

the temporary custody of one or more public children services agencies or 

private child placing agencies for twelve or more months of a consecutive 

twenty-two-month period and, as described in division (D)(1) of section 

2151.413 of the Revised Code, the child was previously in the temporary 

custody of an equivalent agency in another state; 

{¶19} (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; 

{¶20} (e) Whether any of the factors in divisions (E)(7) to (11) of 

this section apply in relation to the parents and child.” 

{¶21} Divisions (E)(7) to (11) include: (7) whether the parent has 

been convicted of a number of listed offenses; (8) whether the parent has 

repeatedly withheld medical treatment or food; (9) whether the parent has 

placed the child at substantial risk of harm two or more times due to 

substance abuse and has rejected treatment two or more times or refused to 
Athens App. No. 10CA35 9 

participate in treatment; (10) whether the parent has abandoned the child; 

(11) whether the parent has had parental rights previously terminated. 

{¶22} The trial court addressed each of the relevant factors of the 

best interest analysis. These factors included that at the time of the court's 

decision, I.M. was six months old. She had spent her entire life in foster 

care, having been placed with Children Services under an emergency order 

immediately after her birth. The court noted that Kasler's supervised 

visitations with I.M. went well, and that Kasler expressed obvious affection 

towards her. Also, Kasler only rarely missed visitation appointments, even 

though Children Services did not help her with transportation. However, for 

the following reasons, the court determined that I.M.’s need for a legally 

secure placement could not be achieved without granting permanent custody 

to Children Services. 

{¶23} The trial court noted that Kasler suffers continuing problems 

with both mental illness and substance abuse. Kasler testified that she was 

taking Prozac and Klonapin for depression and an anxiety disorder. 

Additionally, Kasler admitted to a history of heroin abuse. The fact that her 

battle with substance abuse was not over was underscored by the fact that, at 

the time of the disposition hearing, she was still taking Subutex (under her 

doctor’s supervision) in order to help her deal with her heroin addiction. 
Athens App. No. 10CA35 10 

{¶24} The court found that Kasler’s history regarding her prior 

children was very troubling. As already noted, she had recently had her 

parental rights terminated over three of her other children due to inadequate 

parenting, partly related to her issues with drug abuse. Seven years earlier, 

she had also given up custody of an older child of hers. And that child was 

currently living with the father's parents. Additionally, the evidence showed 

that Kasler was using heroin during her pregnancy with I.M. 

{¶25} The trial court acknowledged that Kasler had made some 

attempt to straighten out her life. Kasler testified that she no longer had a 

drug problem and had not used heroin since April of 2009. However, the 

court noted that in August of 2009, shortly before I.M.’s birth, during a 

surprise inspection at her home by the Adult Parole Authority, there was 

some evidence of “track marks” on her arm. Syringes and other drug 

paraphernalia were also found at the residence and during that same visit, 

I.M.’s father, Mark McClelland, tested positive for opiates. At that time, 

Kasler was seven months into her pregnancy with I.M. 

{¶26} The court also noted that though Kasler claimed to be free 

from illegal drugs, she refused to provide the necessary medical releases 

which would allow Children Services and the court to verify her claims. 

Additionally, on at least one occasion, subsequent to I.M.’s birth, Kasler 
Athens App. No. 10CA35 11 

refused to take a drug screen. Also subsequent to I.M.’s birth, in full 

knowledge that Children Services was seeking permanent custody of I.M., 

Kasler was dropped from ordered services with a mental health and 

counseling agency due to her noncompliance. Finally, the court noted that at 

the time the permanent custody complaint was filed, Kasler was under 

indictment for felony drug offenses. 

{¶27} We agree with the trial court’s findings and decision. Our 

review of the record below, including the transcripts of the permanent 

custody hearings, shows that each of the trial court's findings were fully 

supported therein. The trial court had clear and convincing evidence that 

awarding permanent custody to Children Services was in I.M.’s best interest 

and we overrule Angel Kasler’s sole assignment of error. 

{¶28} As to Kasler’s argument regarding the proper standard of 

review to be applied in permanent custody cases, we see no inconsistency in 

our current standard of review and no reason to modify it. We reiterate that 

a trial court’s decision must find that the movant met or did not meet its 

burden by clear and convincing evidence. Consistent with other Ohio 
Athens App. No. 10CA35 12 

Courts of Appeals, we then review the record to determine whether there 

was competent and credible evidence to support the trial court's decision.2

 JUDGMENT AFFIRMED.

 

2

 See, e.g., In re N.E., 7th Dist. Nos. 10 BE 1, 10 BE 2, 2010-Ohio-6012, at ¶42; In re J.L.C., 11th Dist. No. 

2010-T-0085, 2010-Ohio-5936, at ¶38; In re S.G., 10th Dist. No. 10AP-442, 2010-Ohio-5722, at ¶10; In re 

D.D.S., 5th Dist. No. 2010CA00187, 2010-Ohio-5800, at ¶16. 
Athens App. No. 10CA35 13 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and that the 

Appellee recover of Appellant costs herein taxed. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing 

the Athens County Common Pleas Court, Juvenile Division, to carry this 

judgment into execution. 

 Any stay previously granted by this Court is hereby terminated as of 

the date of this entry. 

 A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

Exceptions. 

Abele, J. and Kline, J.: Concur in Judgment and Opinion. 

 

 For the Court, 

 

BY: _________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from 

the date of filing with the clerk. 
Athens App. No. 10CA35 14