[Cite as In re B.M., 2018-Ohio-3780.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: : JUDGES: 

 : Hon. John W. Wise, P.J. 

 B. M. (DOB 10/15/2016) : Hon. William B. Hoffman, J. 

 : Hon. Earle E. Wise, Jr., J. 

 A Minor Child : 

 : 

 : Case No. 2018CA00053 

 : 

 : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Juvenile Division, Case No. 

2016JCV00928 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: September 19, 2018 

APPEARANCES: 

For Appellant-Mother For Appellee- Stark County DJFS 

MARY G. WARLOP JAMES PHILLIPS 

116 Cleveland Avenue N. W. Stark County DJFS 

Suite 500 110 Central Plaza South 

Canton, OH 44702 Suite 400 

 Canton, OH 44702 
Stark County, Case No. 2018CA00053 2 

Wise, Earle, J. 

{¶ 1} Appellant-Mother D.U. appeals the decision of the Stark County Court of 

Common Pleas, Juvenile Division, which granted permanent custody of her son, B.M., to 

Appellee Stark County Job and Family Services (“SCJFS”). 

FACTS AND PROCEDURAL HISTORY 

{¶ 2} Appellant is the mother of B.M, born October 15, 2016. J.M is B.M's legal 

father, having signed B.M's birth certificate. As this case progressed, A.B was alleged to 

be B.M's biological father. 

{¶ 3} On October 18, 2016, SCJFS filed a complaint alleging dependency and or 

neglect of B.M. An emergency shelter care hearing was held on October 20, 2016 after 

which the trial court found probable cause for SCJFS involvement and that SCJFS had 

made reasonable efforts to prevent the need to remove B.M from appellant's custody. 

The trial court awarded emergency temporary custody of B.M to SCJFS and reaffirmed 

pre-adjudicatory orders for appellant to engage in various services. 

{¶ 4} At a hearing on November 9, 2016, the trial court found B.M dependent, 

awarded temporary custody to the SCJFS. The trial court further approved and adopted 

appellant's case plan, which required her to complete a parenting evaluation at Northeast 

Ohio Behavioral Health and follow any recommendations. 

{¶ 5} Appellant completed the parenting evaluation which recommended she 

attend Goodwill Parenting classes, receive comprehensive mental health treatment 

including medication and counseling, and to secure safe, independent housing. 

{¶ 6} The trial court reviewed the matter on April 11, 2017 and approved and 

adopted the case plan review packet, found compelling reasons existed to preclude filing 
Stark County, Case No. 2018CA00053 3 

for permanent custody, found SCJFS had made reasonable efforts to finalize the 

permanency planning in effect, and maintained the status quo. 

{¶ 7} On August 29, 2017, however, SCJFS filed a motion seeking permanent 

custody of B.M. The agency alleged that B.M could not be placed with appellant within a 

reasonable amount of time as appellant had demonstrated a lack of commitment toward 

B.M, and that permanent custody was in B.M.'s best interest. Trial was set for November 

9, 2017. 

{¶ 8} On September 15, 2017, the trial court again reviewed the matter. The court 

found no compelling reason existed to preclude the filing for permanent custody, and that 

SCJFS had made reasonable efforts to finalize the permanency planning in effect. 

{¶ 9} On November 8, 2017, appellant filed a motion seeking to extend temporary 

custody of B.M to SCJFS and further, named A.B as a new possible biological father for 

B.M. This revelation required the continuance of the permanent custody trial until A.B 

could be served. 

{¶ 10} On November 28, 2017, SCJFS filed an amended motion for permanent 

custody naming A.B as a possible father. The trial was continued until March 13, 2018. 

An attempt was made to determine if A.B was B.M's father, however, A.B failed to 

cooperate with paternity testing. 

{¶ 11} On March 13, 2018, the trial court heard evidence on SCJFS’s motion for 

permanent custody, and on March 28, 2018, the trial court heard evidence regarding best 

interests of B.M. 

{¶ 12} SCJFS presented evidence regarding B.M and appellant. According to Dr. 

Aimee Thomas, who completed appellant’s parenting evaluation, appellant’s I.Q is 57. 
Stark County, Case No. 2018CA00053 4 

This translates to appellant functioning verbally at the level of a 12 year-old, and nonverbally at the level of a 5 year-old. Non-verbal skills include an individual’s ability to learn, 

internalize, and apply information and well as the ability to exercise good judgment. 

Appellant would require oversight and assistance in order to raise B.M. Appellant had 

previously been diagnosed bi-polar and exhibited mood deregulation. Dr. Thomas had 

completed two prior evaluations of appellant and the results of the instant evaluation were 

consistent with the first two. 

{¶ 13} Despite being aided due to her limitations, appellant completed only 5 of 12 

goals at Goodwill Parenting classes. Appellant was unable to retain and apply what she 

learned during her classes during visitations with B.M. Providers at Goodwill had 

concerns about appellant’s ability to parent independently and did not recommend 

reunification with B.M, nor even unsupervised visitation. 

{¶ 14} Appellant failed to follow through with comprehensive mental health 

treatment, had multiple residences throughout the pendency of the case, and her home 

at the time of trial was unsafe for B.M. She had a new boyfriend with a criminal record. At 

the start of the case, drugs were not a concern, however, appellant tested positive for 

marijuana and cocaine in November 2017, and tested positive for marijuana through the 

conclusion of the case. At trial, she admitted to ongoing marijuana use. 

{¶ 15} Kelly Williams was appellant’s ongoing caseworker. She testified that 

appellant had been involved with SCJFS on two other occasions with two other children. 

In those cases, appellant failed to successfully complete services, lost custody, and the 

children were placed with other parties. She further testified that B.M was born with 

several medical issues including acid reflux and eczema, and developmentally delays. 
Stark County, Case No. 2018CA00053 5 

B.M has been in a foster placement since birth. All of his medical needs are being met by 

his foster parents and he is receiving intervention services for his developmental delays. 

B.M is bonded with his foster parents and they have expressed and desire to adopt B.M. 

{¶ 16} Based on her observations, Williams testified the benefit of granting 

permanent custody to SCJFS outweighed any possible harm of separating B.M from 

appellant, and further, was in B.M’s best interest. Debra Shriver, the Guardian ad Litem 

appointed to B.M echoed Williams’ recommendation. 

{¶ 17} On April 10, 2018, the trial court issued findings of fact and 

conclusions of law denying appellant’s motion for extension of temporary custody and 

further finding in spite of the efforts by SCJFS, appellant failed to remedy the conditions 

that caused B.M to be placed with SCJFS, and that B.M cannot and should not be placed 

with appellant. The court therefore found it was in the best interest of B.M to grant 

permanent custody to SCJFS and terminated appellant’s parental rights. 

{¶ 18} Appellant subsequently filed an appeal and the matter is now before this 

court for consideration. Appellant raises two assignments of error: 

I 

{¶ 19} "THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO 

THE STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS 

SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT 

GROUNDS EXISTED FOR PERMANENT CUSTODY AND SUCH DECISION WAS 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." 
Stark County, Case No. 2018CA00053 6 

II 

{¶ 20} "THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY TO 

STARK COUNTY DEPARTMENT OF JOB AND FAMILY SERVICES (SCDJFS) AS 

SCDJFS FAILED TO SHOW BY CLEAR AND CONVINCING EVIDENCE THAT IS IN 

THE BEST INTERESTS OF THE MINOR CHILD TO GRANT PERMANENT CUSTODY 

AND SUCH DECISION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE." 

{¶ 21} We address appellant's assignments of error together. In her first 

assignment of error appellant argues SCDJFS failed to show by clear and convincing 

evidence that permanent custody was appropriate and that the trial court's award of 

permanent custody to SCDJFS was against the manifest weight of the evidence. In her 

second assignment of error, appellant argues SCDJFS failed to show by clear and 

convincing evidence that the award of permanent custody was within B.M's best interest, 

and the trial court's finding that it was is against the manifest weight of the evidence. We 

disagree. 

{¶ 22} As an appellate court, we neither weigh the evidence nor judge the 

credibility of the witnesses. Our role is to determine whether there is relevant, competent 

and credible evidence upon which the fact finder could base its judgment. Cross Truck v. 

Jeffries, 5th Dist. Stark No. CA-5758, 1982 WL 2911 (February 10, 1982). Accordingly, 

judgments supported by some competent, credible evidence going to all the essential 

elements of the case will not be reversed as being against the manifest weight of the 

evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376 N.E.2d 578 

(1978). On review for manifest weight, the standard in a civil case is identical to the 

standard in a criminal case: a reviewing court is to examine the entire record, weigh the 
Stark County, Case No. 2018CA00053 7 

evidence and all reasonable inferences, consider the credibility of witnesses and 

determine “whether in resolving conflicts in the evidence, the jury [or finder of fact] clearly 

lost its way and created such a manifest miscarriage of justice that the conviction 

[decision] must be reversed and a new trial ordered.” State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 

380, 678 N.E.2d 541, 1997-Ohio-52; Eastley v. Volkman, 132 Ohio St.3d 328, 972 N.E.2d 

517, 2012-Ohio-2179. In weighing the evidence, however, we are always mindful of the 

presumption in favor of the trial court's factual findings. Eastley at ¶ 21. 

Permanent Custody 

{¶ 23} R.C. 2151.414(B)(1) states permanent custody may be granted to a public 

or private agency if the trial court determines by clear and convincing evidence at a 

hearing held pursuant to division (A) of R.C. 215.414, that it is in the best interest of the 

child and any of the following apply: 

(a) The child is not abandoned or orphaned* * *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 
Stark County, Case No. 2018CA00053 8 

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

*. 

(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. 

{¶ 24} Clear and convincing evidence is that evidence “which will provide in the 

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” 

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the 

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 361 (1985). 

“Where 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 at 477. 

{¶ 25} In determining whether a child cannot be placed with either parent within a 

reasonable period of time or should not be placed with the parents pursuant to R.C. 

2151.414(B)(1)(a), a trial court is to consider the existence of one or more factors under 

R.C. 2151.414(E) including in relevant part: 

(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 
Stark County, Case No. 2018CA00053 9 

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. 

(2) Chronic mental illness, chronic emotional illness, intellectual 

disability, 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 pursuant 

to division (A) of this section or for the purposes of division (A)(4) of 

section 2151.353 of the Revised Code; 

* * * 

Best Interests 

{¶ 26} R.C. 2151.414(D)(1) sets forth the factors a trial court shall consider in 

determining the best interest of a child: 

(D)(1) In determining the best interest of a child at a hearing held 

pursuant to division (A) of this section or for the purposes of division 

(A)(4) or (5) of section 2151.353 or division (C) of section 2151.415 
Stark County, Case No. 2018CA00053 10 

of the Revised Code, the court shall consider all relevant factors, 

including, but not limited to, the following: 

(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; 

(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 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; 
Stark County, Case No. 2018CA00053 11 

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

apply in relation to the parents and child. 

{¶ 27} Appellant points out that she substantially complied with her case plan 

services. Even so, this court has previously recognized, “that even where a parent has 

participated in his or her case plan and completed most or all of the plan requirements, a 

trial court may still properly determine that such parent has not substantially remedied the 

problems leading to agency involvement.” Matter of L.D. 5th Dist. Licking No. 18 CA 0023, 

2018-Ohio-3380 ¶ 34, citing In re Pendziwiatr/Hannah Children, 5th Dist. Tuscarawas 

App. No. 2007 AP 03 0025, 2007-Ohio-3802, ¶ 27. 

{¶ 28} This is one such case. As set forth in our statement of facts, this is 

appellant's third involvement with SCJFS and the third child removed from her custody. 

T(I) 17. Unfortunately, due to intellectual disability appellant simply cannot parent 

independently and has no support system. Appellant admitted to such at trial. T(I) 105-

106. Because appellant's challenges prevent her from applying what she had been taught 

and from making sound decisions, she was unable to remedy the issues which caused 

the removal of B.M. T(I) 52-53, 72-73, 80-81. In fact, matters became worse instead of 

better during the pendency of this matter when appellant began using drugs. Appellant's 

drug use further impacts her already impaired ability to make sound judgments. T(I) 49-

50. At the time of trial, appellant had moved into a filthy, unsafe home with a man 

possessing a criminal history and at who was under investigation for abusing 2 different 

children. T(I) 12, 20-24. 
Stark County, Case No. 2018CA00053 12 

{¶ 29} During visits with B.M, appellant required direction and could not apply what 

she had learned in her Goodwill parenting classes. T(I) 76-79. Providers with Goodwill 

Parenting could not recommend reunification or even unsupervised visits. T(I) 81. B.M 

had been with his foster family since birth and demonstrated a bond with them that did 

not exist with appellant. B.M's medical and developmental needs were being addressed 

by his foster family and they expressed a desire to adopt B.M. T(II) 7-11,15-17 

{¶ 30} Based on the foregoing, we reject appellant's arguments. SCJFS presented 

ample evidence to demonstrate by clear and convincing evidence that B.M cannot and 

should not be placed with appellant, and further that it was within B.M's best interest to 

grant the agency permanent custody. The trial court's finding of the same, therefore, was 

not against the manifest weight of the evidence. 

{¶ 31} Appellant's first and second assignments of error are overruled. 
Stark County, Case No. 2018CA00053 13 

{¶ 32} The judgment of the Stark County Court of Common Pleas, Family Court 

Division, is affirmed. 

By Wise, Earle, J. 

Wise, John, P.J. and 

Hoffman, J. concur. 

 

 

 

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