[Cite as In re N.L., 2020-Ohio-166.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

In the Matter of: : 

 No. 19AP-397 

[N.L.], : (C.P.C. No. 17JU-8751)

[R.L., : (ACCELERATED CALENDAR) 

 Appellant]. : 

 

D E C I S I O N 

Rendered on January 21, 2020 

 

On brief: Anzelmo Law, and James A. Anzelmo, for 

appellant. 

On brief: Robert J. McClaren, for appellee, Franklin County 

Children Services. 

 

APPEAL from the Franklin County Court of Common Pleas 

Division of Domestic Relations, Juvenile Branch 

BRUNNER, J. 

{¶ 1} Appellant, R.L., biological father of the child, N.L., who is the subject of 

proceedings for permanent child custody, from which this appeal is taken, appeals a 

decision by the Domestic Relations Division, Juvenile Branch of the Franklin County Court 

of Common Pleas entered on May 24, 2019 granting permanent custody of his biological 

child, N.L., to Franklin County Children Services ("FCCS"). Because R.L.'s trial counsel did 

not object to the introduction of testimony by the guardian ad litem ("GAL") and R.L. 

essentially adopted that testimony, there was no plausible basis for excluding the GAL's 

testimony. Thus, we overrule R.L.'s first assignment of error. Because we also find that the 

trial court's conclusions in weighing the factors set forth in R.C. 2151.414 were not against 

the manifest weight of the evidence, we affirm the grant of permanent custody to FCCS. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} N.L. was born in April 2017. (July 10, 2017 Compl. at 1; Tr. at 12, filed Sept. 6, 

2019.) At birth, N.L. weighed 3 pounds and 5 ounces and both he and his mother tested 
No. 19AP-397 2 

positive for cocaine, opiates, and methadone. (July 10, 2017 Compl. at 1; Tr. at 16.) 

Consequently, on July 10, 2017, FCCS filed a complaint alleging that N.L. was an abused, 

neglected, and dependent child. (July 10, 2017 Compl.) 

{¶ 3} A temporary custody order issued in favor of FCCS on July 11, 2017. (July 11, 

2017 Mag. Order.) Because N.L. had remained in the neonatal intensive care unit for 

several months after his birth, the result of this order was that N.L. was released from the 

hospital directly into the care of a foster family and has never lived with his biological 

mother (A.S.) or father (the appellant, R.L.). (Tr. at 22, 39.) Shortly after the temporary 

custody order issued, on July 17, the court appointed a GAL for N.L. (July 17, 2017 Mag. 

Order.) Two months later, the court substituted a new GAL for the previous GAL. (Sept. 

14, 2017 Mag. Order.) That GAL remained in place throughout the life of the case, 

ultimately filing two reports relating N.L.'s status and prospects. (Oct. 2, 2017 GAL Report; 

April 30, 2019 GAL Report.) 

{¶ 4} Three months after the initial custody order, the court adjudicated N.L. to be 

an abused, neglected, and dependent child. (Oct. 10, 2017 Jgmt. Entry.) On June 8, 2018, 

FCCS filed the first motion for permanent custody of N.L. essentially alleging that A.S. and 

R.L. were drug addicts who had abandoned N.L. by failing to visit N.L. or comply with 

substantially any portion of the case plan. (June 8, 2018 PCC Mot. at 4-5.) In December 

2018, FCCS filed a second motion alleging many of the same grounds and adding that A.S. 

had since given birth to another child who also tested positive at birth for opiates and 

cocaine. (Dec. 11, 2018 2d PCC Mot. at 4-6.) 

{¶ 5} On May 7, 2019, the trial court held a hearing on the question of permanent 

custody. (Tr. at 1.) Neither of N.L.'s biological parents appeared on time for the hearing. 

(Tr. at 4-11.) N.L.'s mother, A.S., never appeared for any part of the hearing, reporting 

through her attorney that she was in the hospital for a leg infection. (Tr. at 4-10.) But A.S. 

never produced any proof or documentation to support this excuse. Id. R.L. arrived during 

the testimony of the first witness. (Tr. at 19.) 

{¶ 6} The first witness called by FCCS was the caseworker for N.L.'s case. She 

confirmed that N.L. was born at 33 weeks' gestation with cocaine and various opioids in his 

system and that the first several months of N.L.'s life were spent in a neonatal intensive care 

unit. (Tr. at 16-17, 39.) She said that A.S. and R.L. rarely visited N.L. in the hospital and 
No. 19AP-397 3 

that, due to substance abuse concerns, FCCS had sought and received temporary custody 

of N.L. while he was still in the hospital. (Tr. at 18, 20-21.) The upshot of this, explained 

the caseworker, was that N.L. had been continuously in the custody of FCCS since July 10, 

2017. (Tr. at 22.) 

{¶ 7} The caseworker laid out the case plan objectives that would, if completed, 

have permitted reunification. Essentially, these were that the parents were to complete 

random drug screens, to submit to an alcohol and drug assessment, to follow the 

recommendations of that assessment, to maintain verified employment, to obtain stable 

and verifiable housing, and to submit to mental health assessments. (Tr. at 23, 79-80.) 

Both parents admitted that their housing situation was not suitable for N.L. (Tr. at 27-28, 

86.) Neither parent completed even a single drug screen and neither submitted to the 

alcohol and drug assessment. (Tr. at 29, 34.) Neither parent took any steps toward 

submitting to a psychological evaluation. (Tr. at 34.) Though R.L. generally was employed, 

verification of that fact was inconsistent. (Tr. at 28-29.) Finally, as of the time of the 

hearing in May 2019, the last time R.L. had visited N.L. was December 20, 2017. (Tr. at 34-

35.) A.S. had not visited since September 18, 2018. Id. Visits were permitted and all either 

parent had to do to obtain a visit was to call and schedule one. (Tr. at 35.) In short, despite 

attempts by FCCS to contact the parents at least every 60 days, the parents failed to respond 

and neither parent met substantially any of the case plan objectives. (Tr. at 50, 83-84, 93-

94.) 

{¶ 8} The caseworker stated that she made contact with some relatives of R.L. but 

that none were willing and able to take custody of N.L. (Tr. at 38-39.) However, the 

caseworker also testified that N.L. had been in the same foster home since his discharge 

from the neonatal intensive care unit, that he had bonded with his foster parents (referring 

to them as "momma" and "dada") and the other children in the home. (Tr. at 39.) The 

caseworker testified that N.L.'s younger sister also lived in the foster home as of the time of 

hearing and that N.L. referred to her as "baby" and gave her kisses. (Tr. at 41.) According 

to the caseworker, the foster parents were willing to adopt both N.L. and his little sister. 

(Tr. at 40.) 

{¶ 9} The GAL testified that he had visited N.L. consistently at his foster parents' 

home and that N.L. appeared to regard his foster parents as his true parents. (Tr. at 111-
No. 19AP-397 4 

12.) He admitted that he never observed a visit between N.L. and R.L. (or A.S.) because the 

visits were so infrequent. (Tr. at 112-13.) As he put it, "So due to basically no visitation 

between either parent, I have not been able to see [N.L.] interact with biological parents." 

(Tr. at 113.) He opined that N.L. was too young, as of the time of hearing, to articulate his 

wishes. (Tr. at 117.) But based on observing N.L. in his foster home, the GAL stated that it 

was unlikely that N.L. would wish to leave his foster family. (Tr. at 117.) In summing up, 

the GAL noted that both N.L. and his younger sister were born positive for drugs and that 

both A.S. and R.L. had completely failed to screen or even register for drug screening. (Tr. 

at 118-21.) According to the GAL, after two years with no progress, N.L.'s need for 

permanence justified a grant of permanent custody to FCCS. Id. 

{¶ 10} R.L. testified twice, once as on cross, and once on direct during the 

presentation of his own case. (Tr. at 98, 123.) He testified that A.S. is his wife and had been 

married since 2012. (Tr. at 99.) He admitted that he and A.S. were still living in unsuitable 

housing and that neither of them could take care of N.L. as of the hearing date. (Tr. at 99-

101, 129-30, 152-57.) R.L. also implied that he had "no real objections" to N.L. being in the 

custody of the foster parents: 

Q. Do you love [N.L.]? 

A. I really don't know [N.L.] 

Q. But do you want to have him in your custody? 

A. I'm not -- I mean, like I said before, I have no real 

objections – 

Q. Could - 

A. - they're great people. 

(Tr. at 132.) In answer to questions from his attorney, R.L. stated that he did not want N.L. 

out of his life. Id. Yet, he later further admitted that he wanted to make an unselfish 

decision for N.L. and that the foster parents were doing a better job than he could do. (Tr. 

at 154-55.) R.L. admitted that A.S. had a problem with drugs and also that he, himself, 

refused to submit to drug testing at the time of hearing on the grounds that he would test 

positive. (Tr. at 101-06, 125-26.) R.L. also endorsed the testimony of the GAL, stating that 

"everything he said is correct." (Tr. at 144.) 
No. 19AP-397 5 

{¶ 11} On May 24, 2019, the trial court issued a judgment entry granting permanent 

custody of N.L. to FCCS. (May 24, 2019 Jgmt. Entry.) The trial court found that N.L. had 

been abandoned, that no other suitable relative could take custody, and N.L.'s biological 

parents had failed to successfully complete any essential components of the case plan. Id.

at 8-11. 

{¶ 12} R.L. now appeals. 

II. ASSIGNMENTS OF ERROR 

{¶ 13} R.L. presents two assignments of error for review: 

[1.] The trial court plainly erred by admitting the testimony of 

the guardian ad litem. 

[2.] Children services failed to establish, by clear and 

convincing evidence, that it should be given permanent custody 

of N.L. 

III. DISCUSSION 

A. First Assignment of Error - Whether the Trial Court Plainly Erred in 

Admitting the GAL's Testimony 

{¶ 14} R.L. argues that, although his counsel did not object to the GAL offering 

testimony in this case and although he testified that "everything" the GAL said was 

"correct," we should find that the GAL should not have been permitted to testify. (R.L.'s 

Brief at 5-7; Tr. at 144.) He bases this argument on the notion that the GAL insufficiently 

investigated the case and that allowing his testimony without the foundation of robust 

investigation constitutes civil plain error. (R.L.'s Brief at 5-7.) See State v. Morgan, 153 

Ohio St.3d 196, 2017-Ohio-7565, ¶ 37-40. 

{¶ 15} The Ohio Rules of Evidence provide only one potential basis to exclude the 

GAL's testimony: 

A witness may not testify to a matter unless evidence is 

introduced sufficient to support a finding that the witness has 

personal knowledge of the matter. Evidence to prove personal 

knowledge may, but need not, consist of the witness' own 

testimony. 

Evid.R. 602. The GAL in this case presented evidence that he had personal knowledge of 

N.L.'s situation. He testified that for the nearly two years in which he had been GAL for 

N.L., he had visited regularly at the foster home and had seen him grow from a baby into a 
No. 19AP-397 6 

two-year-old toddler. (Tr. at 111-12.) The GAL testified that he had observed the 

interactions, had observed that the foster parents' household was the only home N.L. had 

ever known. Id. Based on that personal knowledge, he offered a lay opinion that N.L., a 

two-year-old child, would not want to be removed from the only home and the only parents 

he had ever known. (Tr. at 117.) The GAL did not attempt to opine about matters of which 

he had no knowledge and testified clearly that he could provide no information about the 

nature of N.L. and R.L.'s interaction because visits were so infrequent that he had never 

had the opportunity to witness one. (Tr. at 112-13.) Nothing about the GAL's testimony 

suggests that he should have been prohibited from testifying. 

{¶ 16} Moreover, even if there had been some basis on which to exclude the GAL's 

testimony, R.L. does not explain how he was unfairly prejudiced by it or why the failure to 

exclude it would not have been harmless. Civ.R. 61; see Cahill v. Owens, 10th Dist. No. 

15AP-925, 2016-Ohio-4972, ¶ 22, quoting Hayward v. Summa Health Sys., 139 Ohio St.3d 

238, 2014-Ohio-1913, ¶ 25 ("We examine whether 'without th[at] error[]' the factfinder 

'probably would not have arrived at the same verdict.' "). R.L. himself plainly admitted that 

"everything" the GAL said was "correct," that N.L. was thriving in foster care, that he and 

his wife could not take care of N.L., and that he had not visited N.L. since December 2017. 

(Tr. at 107, 132, 144, 152-57.) According to this evidence, admitting the GAL's testimony 

was not prejudicial to R.L.'s chances of obtaining custody of his son, especially in the 

circumstance as here where R.L. plainly admitted that the GAL's testimony was correct. 

{¶ 17} We overrule R.L.'s first assignment of error. 

B. Second Assignment of Error - Whether the Trial Court Erred in Granting 

Permanent Custody of N.L. to FCCS 

{¶ 18} When proceeding under R.C. 2151.414(B)(1), a decision to award permanent 

custody requires the trial court to take a two-step approach. First, the trial court must find 

whether 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, 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 if, as 

described in division (D)(1) of section 2151.413 of the Revised 

Code, the child was previously in the temporary custody of an 
No. 19AP-397 7 

equivalent agency in another state, 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 twentytwo-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. 

(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 another 

state. 

R.C. 2151.414(B)(1)(a) through (e). 

{¶ 19} Once the trial court finds that at least one of these circumstances applies, the 

trial court then must determine whether, "by clear and convincing evidence," the movant 

has shown that a grant of permanent custody is in the "best interest of the child." R.C. 

2151.414(B)(1). Clear and convincing evidence is that degree of proof that will produce in 

the mind of the trier of fact a firm belief or conviction as to the facts to be established. Cross 

v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus. It is more than a mere 

preponderance of the evidence but does not require proof beyond a reasonable doubt. Id.

{¶ 20} In this case, R.L. forthrightly admitted that he had not visited N.L. since 

Christmas 2017, a period of more than 16 months. (Tr. at 107.) This constitutes 

presumptive abandonment. See R.C. 2151.011(C) ("[A] child shall be presumed abandoned 

when the parents of the child have failed to visit or maintain contact with the child for more 

than ninety days, regardless of whether the parents resume contact with the child after that 

period of ninety days."); see also R.C. 2151.414(B)(1)(b). It is also undisputed that N.L. had 
No. 19AP-397 8 

been in the continuous custody of FCCS since July 10, 2017. (Tr. at 22.) R.C. 

2151.414(B)(1)(d).1

{¶ 21} As an alternative to abandonment or length of time in FCCS' custody, the trial 

court also discussed the alternative ground of R.C. 2151.414(B)(1)(a)—where (when neither 

abandonment nor length of custody applies) "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." 

(May 24, 2019 Jgmt. Entry at 10.) When one of the factors listed in R.C. 2151.414(E) are 

satisfied, "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." R.C. 2151.414(E). In 

this case, the trial court found divisions (E)(1), (E)(4), and (E)(10) satisfied with respect to 

R.L. (May 24, 2019 Jgmt. Entry at 10.) That is, the trial court found that N.L.'s parents had 

continuously failed to remedy the conditions that caused N.L.'s removal in the first place, 

had demonstrated a lack of commitment to N.L. by failing to attempt to remedy these 

conditions, and had abandoned N.L. Id. We discern no error in these conclusions. Further, 

R.L. candidly testified that neither he nor his wife could care for N.L. as of the hearing date 

and the other evidence showed that in the two years the case had been pending neither 

parent had made any significant effort to comply with the case plan or even visit their child. 

(Tr. at 27-29, 34-35, 50, 83-86, 93-94, 99-101, 107, 113, 118-21, 129-32, 152-57.) 

{¶ 22} The trial court did not err in finding the first portion of R.C. 2151.414(B)(1) to 

be satisfied and therefore properly turned to consider whether it was "in the best interest 

of the child to grant permanent custody of the child to the agency that filed the motion for 

permanent custody." Id. R.C. 2151.414(D) sets forth relevant factors to consider in 

determining the best interests of the child: 

(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; 

 

1 Because FCCS did not seek to proceed under R.C. 2151.414(B)(1)(d), the trial court merely noted it as a 

possible additional justification. (May 24, 2019 Jgmt. Entry at 10-11.) 
No. 19AP-397 9 

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

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

children services agencies or private child placing agencies for 

twelve or more months of a consecutive twenty-two-month 

period, or the child has been in the temporary custody of one 

or more public children services agencies or private child 

placing agencies for twelve or more months of a consecutive 

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

of section 2151.413 of the Revised Code, the child was 

previously in the temporary custody of an equivalent agency in 

another state; 

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

and whether that type of placement can be achieved without a 

grant of permanent custody to the agency; 

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

section apply in relation to the parents and child. 

R.C. 2151.414(D)(1)(a) through (e). The additional factors referenced in R.C. 

2151.414(D)(1)(e) are: 

(7) The parent has been convicted of or pleaded guilty to one of 

[a number of offenses apparently inapplicable in this case]. 

(8) The parent has repeatedly withheld medical treatment or 

food from the child when the parent has the means to provide 

the treatment or food, and, in the case of withheld medical 

treatment, the parent withheld it for a purpose other than to 

treat the physical or mental illness or defect of the child by 

spiritual means through prayer alone in accordance with the 

tenets of a recognized religious body. 

(9) The parent has placed the child at substantial risk of harm 

two or more times due to alcohol or drug abuse and has rejected 

treatment two or more times or refused to participate in further 

treatment two or more times after a case plan issued pursuant 

to section 2151.412 of the Revised Code requiring treatment of 

the parent was journalized as part of a dispositional order 

issued with respect to the child or an order was issued by any 

other court requiring treatment of the parent. 

(10) The parent has abandoned the child. 

(11) The parent has had parental rights involuntarily 

terminated with respect to a sibling of the child pursuant to this 

section or section 2151.353 or 2151.415 of the Revised Code, or 

under an existing or former law of this state, any other state, or 
No. 19AP-397 10 

the United States that is substantially equivalent to those 

sections, 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, welfare, and safety 

of the child. 

R.C. 2151.414(E)(7) through (11). 

{¶ 23} In reviewing a trial court's decision as to whether the statutory elements are 

satisfied in a permanent custody case, we use a manifest weight of the evidence standard. 

In re M.E.G., 10th Dist. No. 06AP-1256, 2007-Ohio-4308, ¶ 51; In re G.S., 10th Dist. No. 

05AP-1321, 2006-Ohio-2530, ¶ 4. In the time since In re M.E.G. and In re G.S. were 

decided, the Supreme Court of Ohio has "carefully distinguished the terms 'sufficiency' and 

'weight,' " even in civil cases, "declaring that 'manifest weight' and 'legal sufficiency' are 

'both quantitatively and qualitatively different.' " Eastley v. Volkman, 132 Ohio St.3d 328, 

2012-Ohio-2179, ¶ 10, in passim, quoting State v. Thompkins, 78 Ohio St.3d 380 (1997), 

paragraph two of the syllabus. 

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. * * * Weight is not a 

question of mathematics, but depends on its effect in inducing 

belief." 

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387; Black's Law Dictionary 1594 

(6th Ed.1990). 

1. Factor (D)(1)(a) – Relationship Between N.L. and Biological Father, 

Siblings, and Foster Parents 

{¶ 24} By R.L.'s own admission, he and N.L. do not have a relationship. (Tr. at 132.) 

The GAL and caseworker testified that N.L. is thriving in the care of his foster parents (the 

only parents he has ever known) whom he refers to as "momma" and "dada." (Tr. at 39, 

111-12.) His younger sister is placed with the family also and he appears bonded to her 

referring to her as "baby" and giving her kisses. (Tr. at 41.) 

{¶ 25} The trial court's discussion on this factor shows it considered evidence that is 

capable of inducing belief and that supports its conclusions that granting permanent 

custody to FCCS is in the best interest of N.L. (May 24, 2019 Jgmt. Entry at 9.) In short, 
No. 19AP-397 11 

we find that the trial court's findings concerning what was in the best interest of N.L. were 

not against the manifest weight of the evidence and we discuss them more fully as follows. 

2. Factor (D)(1)(b) – The Wishes of N.L. 

{¶ 26} N.L.'s very young age did not permit him to verbally articulate his wishes. (Tr. 

at 117.) The record shows that the foster parents' household was the only home N.L. had 

ever known. (Tr. at 111-12.) The GAL offered a reasonable lay opinion that N.L., a twoyear-old child, would not want to be removed from the only home and the only parents he 

has ever known. (Tr. at 117.) The trial court accurately noted that N.L. was too young to 

articulate his wishes. (May 24, 2019 Jgmt. Entry at 9.) Nevertheless it noted that, in light 

of the GAL's testimony and the other facts of the case, it was reasonable to conclude that 

N.L.'s wish, could it have been articulated, would have been to stay with his foster parents 

and be adopted. Id. The trial court's findings on this factor are not against the manifest 

weight of the evidence. 

3. Factor (D)(1)(c) – N.L.'s Custody History 

{¶ 27} It is undisputed that N.L. was in the custody of the agency from July 10, 2017, 

through the time of hearing in May 2019. (Tr. at 22.) That is "twelve or more months of a 

consecutive twenty-two-month period," as contemplated in R.C. 2151.414(D)(1)(c). 

{¶ 28} It was therefore not against the manifest weight of the evidence for the trial 

court to have concluded that the record clearly and convincingly showed that N.L.'s history 

with the agency militated in favor of granting the motion for permanent custody. 

4. Factor (D)(1)(d) – N.L.'s Need for Secure Placement and Whether 

that can be Achieved Without Granting Custody to FCCS 

{¶ 29} N.L., who was born in April 2017, and who was taken directly from the 

neonatal intensive care unit to his foster home, had been in agency custody his entire life at 

the time of the hearing in May of 2019. (Tr. at 16-17, 22, 39.) Neither of his parents showed 

any interest in completing virtually any aspect of the case plan that might have resulted in 

reunification. (Tr. at 50, 83-84, 93-94.) Both struggled with what clearly appeared to be 

drug addiction. (Tr. at 20-21.) The evidence also showed that, at the time of the hearing, 

N.L. was in a foster home with a family that wanted to adopt him permanently and he was 

thriving in that environment. (Tr. at 39-41, 111-12.) 

{¶ 30} The trial court stated the evidence on this factor supporting its finding that 

N.L. was in need of legally secure permanent placement that could not be achieved without 
No. 19AP-397 12 

granting permanent custody to FCCS. We note from the record and the domestic court's 

decision that this conclusion was especially accurate in light of the fact that N.L.'s biological 

parents were not making sufficient progress to alleviate the symptoms of their apparent 

drug addictions and resulting inadequacies in their ability to parent N.L. Thus, this was 

not against the manifest weight of the evidence. (May 24, 2019 Jgmt. Entry at 9.) 

5. Factor (E)(7) – Convictions of Parents 

{¶ 31} There was no evidence that any parent committed any of the relevant offenses 

in this case. Thus, the trial court correctly did not discuss this factor. (May 24, 2019 Jgmt. 

Entry at 9.) 

6. Factor (E)(8) – Withholding Food or Medical Treatment 

{¶ 32} Our review of the record shows that this factor was inapplicable and that the 

trial court correctly did not discuss it. (May 24, 2019 Jgmt. Entry at 9.) 

7. Factor (E)(9) – Risk of Harm from Drug or Alcohol Abuse 

{¶ 33} There was evidence that both parents used drugs and had never engaged or 

even registered for drug screening. (Tr. at 29, 34, 118-21.) Yet, there was no evidence that 

R.L. (who has never had custody of N.L.) "placed [N.L.] at substantial risk of harm two or 

more times due to alcohol or drug abuse." R.C. 2151.414(E)(9). Consequently, the trial 

court was correct to have failed to find this factor. (May 24, 2019 Jgmt. Entry at 9.) 

8. Factor (E)(10) – Whether N.L. has been Abandoned 

{¶ 34} R.L. abandoned N.L. when he failed to visit him for a period that was, at the 

time of trial, more than 16 months. (Tr. at 107.) R.C. 2151.011(C). Although the trial court 

was technically incorrect in stating that no evidence was presented on any of the (E)(7) 

through (11) factors, it elsewhere discussed abandonment and correctly determined that 

N.L. was abandoned. (May 24, 2019 Jgmt. Entry at 8.) Thus, the trial court's failure to 

repeat that finding with respect to division (E)(10) of R.C. 2151.414 is at worst harmless 

oversight. Civ.R. 61. 

9. Factor (E)(11) – Whether Parents have had Parental Rights 

Involuntarily Terminated with Respect to a Sibling of N.L. 

{¶ 35} There was evidence at trial that both A.S. and R.L. have several other 

children, none of whom reside with them, and evidence was not introduced to prove that 

their parental rights had been involuntarily terminated. (Tr. at 44-49, 109.) Thus, the trial 

court did not err in failing to address this issue. 
No. 19AP-397 13 

10. Overall Weighing of the Factors and the Best Interest of N.L. 

{¶ 36} At the time of permanent custody hearing, R.L. had not seen his son for more 

than 16 months. Visitations were permitted. All he had to do was telephone FCCS and 

schedule one. But he did not. He never submitted himself for a single drug screen (did not 

at any time even sign up to be screened). Nor did R.L. make any significant effort to 

complete any other case plan objective. In fact, he candidly admitted that he could not take 

custody of N.L. as of the hearing date and that N.L. was better off with his foster family. 

N.L.'s mother, A.S., had also gone many months without visiting N.L., also never even 

signed up for drug screens, and also never completed any of the case plan objectives. She 

also did not appear for the permanent custody hearing and did not in any way substantiate 

her alleged medical excuse for failing to appear. 

{¶ 37} Under these circumstances, it was not against the manifest weight of the 

evidence for the trial court to have concluded that, by clear and convincing proof, awarding 

permanent custody to FCCS was the appropriate outcome. Not only did the trial court not 

err significantly in its recitation on any individual factor, it also did not err in weighing them 

to reach the ultimate result. Accordingly, R.L.'s second assignment of error is overruled. 

IV. CONCLUSION 

{¶ 38} Trial counsel did not object to the introduction of testimony by the GAL and 

R.L. essentially adopted that testimony, stating that "everything" the GAL said was 

"correct." There was no plausible basis for excluding the GAL's testimony and no potential 

for unfair prejudice resulted from its introduction. The trial court did not err prejudicially 

in considering and weighing the factors set forth in R.C. 2151.414 and its resulting 

conclusions were not against the manifest weight of the evidence. We affirm the judgment 

of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile 

Branch in the granting of permanent custody to FCCS. 

Judgment affirmed. 

DORRIAN and LUPER SCHUSTER, JJ., concur.