[Cite as In re E.H., 2022-Ohio-3124.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

IN THE MATTER OF:

E.H.

JUDGES:

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

Hon. William B. Hoffman, J.

Hon. John W. Wise, J. 

Case No. 2022CA00017

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common PLeas, 

Juvenile Division, Case No. F2019-0134

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: September 7, 2022

APPEARANCES:

For Mother J.H. For Appellee

JERMAINE COLQUITT NO APPEARANCE

33 West Main Street, Suite 109

Newark, Ohio 43055

Guardian ad Litem For Appellant Grandmother R.H.

CEDRIC P. COLLINS ALLISON MACLEOD-OWEN

P. O. Box 564 110 East Elm Street, Suite B

Pickerington, Ohio 43147 Granville, Ohio 43023

For E.H.

J. MICHAEL NICKS

96 West William Street, Suite 100

Delaware, Ohio 43015
Licking County, Case No. 2022CA00017 2

Wise, John, J.

{¶1} Appellant R.H. appeals the decision of the Licking County Court of Common 

Pleas, Juvenile Division, which terminated Appellant’s parental rights and granted Licking

County Department of Job and Family Services’ (“Agency”) motion for permanent custody 

of E.H. The following facts give rise to this appeal.

FACTS AND PROCEDURAL HISTORY

{¶2} E.H. was born on August 28, 2018. J.H. is the biological mother of E.H.; B.H 

is the biological father of E.H. Appellant is the maternal grandmother of E.H.

{¶3} E.H. was found to be a neglected and dependent child.

{¶4} On March 19, 2019, E.H. was removed from the care of J.H. and B.H.

{¶5} On February 19, 2020, the Agency filed for permanent custody of E.H.

{¶6} On September 28, 2020, the trial court held a hearing on the State’s Motion 

for Permanent Custody before the Magistrate.

{¶7} At the hearing, Jennifer Newton testified that she has been the foster mother 

of E.H since April 4, 2019. When E.H. first came to live with the Newtons, he was on 

oxygen, underweight, and fragile. E.H. had bronchial pulmonary dysplasia from scar 

tissue in his lungs from being on a ventilator when he was born twenty-eight weeks 

premature. E.H.’s half-brother, D.H., lives with the Newtons. D.H. came to the Newton 

house on June 19, 2020.

{¶8} E.H. is currently in weekly speech therapy and physical therapy twice a 

month. E.H. also has medical appointments for eczema and early cerebral palsy. J.H. 

was not approved or permitted to attend the appointments.
Licking County, Case No. 2022CA00017 3

{¶9} Next, Allison Keeley testified she was employed by Licking County Children 

Services as a social worker until December of 2019. Ms. Keeley has been involved in 

E.H.’s case since April of 2019. The Agency became involved in E.H.’s case due to 

substance abuse by the parents, lack of financial stability, poor living conditions and 

neglect. 

{¶10} On April 18, 2019, a case plan for E.H.’s parents was filed. The issues 

identified in the case plan were income, housing, substance abuse, couples counseling, 

mental health and employment. At the time of filing, J.H. reported domestic violence 

between her and E.H.’s father. 

{¶11} E.H. was born twenty-eight weeks premature. His parents were not 

following through on his medical appointments. Initially, the parents were living in Newark, 

Ohio, but were evicted from their residence. E.H.’s parent’s relationship was on and off, 

and they never attended couples counseling.

{¶12} After eviction, J.H. had no permanent address. J.H. reported to the Agency 

that she was beginning work at a McDonald’s; however, the McDonald’s said she was not 

working for them. J.H. claimed no other employment. J.H. also claimed she was engaging 

in alcohol and drug abuse treatment at NYAP. However, NYAP confirmed she went 

through the intake process, but never engaged in treatment. J.H. confirmed to the Agency 

that she was still using cocaine and methamphetamine.

{¶13} During an in-home visit, Ms. Keeley noted that J.H. would not allow them 

past the entryway of the home. J.H. said they were being evicted and everything was 

packed up.
Licking County, Case No. 2022CA00017 4

{¶14} After B.H. was evicted from his residence in Newark, Ohio, he did not report 

another permanent address. B.H. followed through on alcohol and drug treatment. B.H. 

admitted to using cocaine and marijuana. 

{¶15} The Agency looked to place E.H. with J.H.’s mother Appellant. The Agency 

decided against placement with Appellant due to Appellant’s own history with the Agency 

and reports of mold in Appellant’s home. When Appellant and Ms. Keeley spoke about 

E.H. going to live with Appellant, Appellant said she can buy a new house so mold won’t 

be an issue. 

{¶16} Next, Phaedra Abdalla testified that she is a visitation coordinator with the 

Agency. She supervises visits, intervenes as needed, and takes notes. J.H. had been 

removed from the visitation schedule because she had three no-show visits in a row. Her 

visitation was rescheduled for August 27, 2019. 

{¶17} During the visits, J.H. actively participated by playing with E.H., bringing him 

snacks, and changing diapers. She was generally pleasant and respectful.

{¶18} During Appellant’s portion of the visits, Ms. Abdalla stated Appellant was 

overbearing. She was bossing people around and hindering J.H.’s visit with E.H.

{¶19} Next, J.H. testified she is currently living in Newark, Ohio with a friend of her 

father. No formal lease or contract exists for housing. J.H. testified she completed her 

initial drug and alcohol assessment, but when she returned to engage in treatment, her 

counselor had left and they failed to assign her a new counselor.

{¶20} J.H. testified she was placed in temporary custody of Franklin County 

Children’s Services at the age of thirteen or fourteen. She was briefly reunited with 

Appellant at age sixteen, but was back in Franklin County Children’s Services custody 
Licking County, Case No. 2022CA00017 5

until age eighteen. J.H. had run away from home and was hit with a belt by Appellant. 

J.H. testified to possible use in the last three months of methamphetamine. J.H. testified 

E.H.’s father has hit her on three occasions. 

{¶21} J.H. currently lives with her boyfriend at a family friend’s house. There is no 

formal contract in place. J.H. did not inform the Agency of her new residence, the identity 

of her boyfriend, or that she is living with her boyfriend. 

{¶22} J.H. also testified to her employment history. She stated she worked a 

couple shifts at a pizzeria, worked at Club 2k, and would be paid for singing, dancing, and 

rapping. She has not had any income in the last thirty days. J.H. has stayed with Appellant 

recently. Appellant has provided some support to J.H.

{¶23} The hearing was continued to October 13, 2020.

{¶24} At this hearing, a motion was made to allow Appellant to attend visitations 

with E.H. The trial court granted this motion.

{¶25} J.H. failed to appear at the hearing, and her counsel moved for a 

continuance. The continuance was denied.

{¶26} Bridget Lorenz Lemberg testified she is the lab director and toxicologist at 

Forensic Fluids Laboratories in Kalamazoo, Michigan.

{¶27} Forensic Fluids Laboratories performed drug tests on J.H. In May of 2019, 

J.H. tested positive for amphetamine and methamphetamine. In August of 2019, J.H. 

tested positive for amphetamine, methamphetamine, and marijuana. In September of 

2019, J.H. did not test positive for any controlled substance. In December of 2019, J.H. 

tested positive for marijuana. In January of 2020, J.H. testified positive for amphetamine, 

methamphetamine and marijuana. In February of 2020, J.H. tested positive for 
Licking County, Case No. 2022CA00017 6

amphetamine and methamphetamine. In March of 2020, J.H. tested positive for 

amphetamine and methamphetamine. In June of 2020, J.H. tested positive for 

methamphetamine and cocaine. In July of 2020, J.H. tested positive for amphetamine 

and methamphetamine. In August of 2020, J.H. tested positive for amphetamine and 

methamphetamine.

{¶28} Forensic Laboratories also conducted drug testing of B.H. In June of 2019, 

he tested positive for amphetamine, methamphetamine, marijuana, and cocaine. In 

August of 2019, he tested positive for amphetamine, methamphetamine, and marijuana. 

In September of 2019, he did not test positive for any controlled substance. In November 

of 2020, he tested positive for amphetamine and methamphetamine. In December of 

2020, he tested positive for marijuana. In January of 2020, he tested positive for 

marijuana. In February of 2020, he tested positive for marijuana. In March of 2020 he 

tested positive for marijuana and cocaine. In June of 2020, he tested positive for 

marijuana. In August of 2020, he tested positive for marijuana.

{¶29} Next, Palma Ashcraft testified she is a social worker with the Agency. E.H. 

was born addicted to cocaine and marijuana. E.H. was removed from the care of J.H. and 

B.H. over concerns of hospitalization from nonorganic failure to thrive and losing a 

significant amount of weight. Neither J.H. nor B.H. were following through on 

recommendations during hospital admissions. The Agency was also concerned over 

home conditions, unemployment of J.H., parenting, substance abuse, and mental health.

{¶30} Ms. Ashcraft reviewed the case plan with J.H. and B.H. J.H. had to obtain 

stable housing and employment, undergo substance abuse treatment, mental health 
Licking County, Case No. 2022CA00017 7

treatment, couples counseling, and resolve traffic and legal issues. From June of 2019 

until April of 2020, J.H. had no stable residence. 

{¶31} Ms. Ashcraft visited J.H.’s current residence in Newark on September 29, 

2020. Ms. Ashcraft described it as appropriate. However, the Agency has concerns over 

J.H.’s boyfriend, Je.H. He has current felony charges against him for theft. J.H. does not 

have a contract with the landlord. The Agency is concerned with J.H.’s housing at this 

time.

{¶32} J.H. did not disclose employment until January of 2020, when she worked 

at Hendoc’s pub in Columbus and picked up odd jobs on TaskRabbit until February of 

2020. From June of 2020 until August of 2020, she reported working at a pizzeria and 

Club 2k, but never produced verification. Next, she claimed she traveled out west with a 

friend delivering cantaloupe and watermelon to Colorado, but did not disclose if or how 

much she was paid. J.H.’s employment is still an issue for the Agency.

{¶33} Appellant claimed she attended substance abuse classes at BHP in Mount 

Vernon, Ohio, but when Ms. Ashcraft called to verify, they said that they had never heard 

of her. J.H. never sought treatment for substance abuse or mental health as required by 

her case plan. J.H. took thirteen drug tests over the course of the case plan, and tested 

positive for methamphetamines in a majority of them. J.H.’s substance abuse and mental 

health is still an issue for the Agency.

{¶34} J.H. did complete parenting classes. However, her attendance at visitations 

with E.H. were not consistent. If all three boys were in attendance, it was very chaotic, 

and hard for her to handle all three children. Now that her visits are only with E.H., it is 

easier for her. J.H.’s behavior during the visits is not an issue for the Agency.
Licking County, Case No. 2022CA00017 8

{¶35} During one visitation, Ms. Ashcraft gave B.H. a ride from drug testing to 

visitation one day. Upon arrival Appellant took pictures, and then J.H. arrived to videotape 

and yell at Ms. Ashcraft and B.H. J.H. was yelling obscenities until Appellant told her to 

get in Appellant’s car and they pulled away.

{¶36} B.H.’s case plan included obtaining stable housing, obtaining stable 

employment, completing drug and mental health treatment, taking parenting classes, 

couples counseling, and resolve any legal or traffic issues. 

{¶37} After B.H.’s eviction from his residence in Newark, he stayed with friends 

for several months. Then he moved to Massachusetts to live with his dad. He then moved 

back to Newark in August of 2020. He now lives with J.H.’s foster brother. The residence 

is a three-bedroom duplex. His two sons live with him. He sleeps on the couch, and there 

is not a room for E.H. B.H. has an agreement with J.H.’s brother, no lease or contract. 

B.H.’s housing is still a concern for the Agency.

{¶38} B.H. claims employment with Amazon, but has not verified his employment. 

The issue of B.H.’s employment is still a concern of the Agency.

{¶39} B.H. attended substance abuse treatment in Ohio. This stopped due to 

COVID. At the beginning, B.H. was testing positive for methamphetamine, but by the end 

of the case he mainly tested positive for marijuana. B.H. has indicated he does not 

recognize marijuana as an illegal substance and has no plans to stop using it. Substance 

abuse and mental health are still a concern for the Agency.

{¶40} The Agency has identified Appellant as a possible relative for placing E.H. 

The Agency ruled out Appellant because of her past agency involvement and 

conversations Ms. Ashcraft had with her. Appellant had told Ms. Ashcraft that E.H. spent 
Licking County, Case No. 2022CA00017 9

substantial time with her. She cared for him frequently. This led Ms. Ashcraft to have 

concerns that she didn’t identify the situation and remove E.H. from the situation. She 

should have noticed his weight loss and that he was not receiving the care he needed. 

Appellant has a history of physical abuse which led to Appellant’s removal from her home.

{¶41} Appellant’s initial home was also deemed unsuitable as there were black 

mold issues. 

{¶42} Appellant was present at the hospital during E.H.’s hospitalization more 

than either parent. Appellant was a trusted source of care for E.H. when his siblings were 

sick. Appellant obtained a new residence, but it was never inspected.

{¶43} No other family members have been identified as suitable for placement. 

E.H. has been diagnosed with early cerebral palsy.

{¶44} E.H. is currently living with Jennifer and Jason Newton in a foster-to-adopt 

placement. They are interested in adopting if permanent custody is granted to the Agency. 

He is with his older sibling D.H. and has three foster siblings. All of his special needs are 

being met by the Newtons. 

{¶45} The Agency does not believe either parent has alleviated or will alleviate 

the concerns giving rise to the dependency finding in the near future. E.H. cannot be 

placed with either parent in the near future. It is in the Agency’s opinion that granting 

permanent custody is in the best interest of E.H.

{¶46} Next, Cedric Collins testified that he is the Guardian ad Litem for E.H. He 

has observed E.H. in his foster home and has observed that he is doing very well. Initially, 

E.H. had many medical issues, was on oxygen, had significant weight loss, and was not 

developing. Now he is growing, gaining weight, off oxygen, and walking. 
Licking County, Case No. 2022CA00017 10

{¶47} Mr. Collins still has concerns regarding B.H.’s and J.H.’s ability to parent 

E.H. Specifically, they are still using illegal substances, they are not financially stable, 

they do not have stable housing, and all these are important for a child with special needs.

{¶48} Mr. Collins looked into placement with Appellant. He went to Appellant’s 

home, observed most everything a child of E.H.’s age would need. However, the stairs to 

the basement did not have a railing to prevent a child from falling, which is important for 

a child with special needs. She was not fully unpacked and boxes still needed put away. 

Appellant was receiving partial retirement, but also working to meet her own needs. Mr. 

Collins was concerned about meeting the needs of E.H. Appellant needs a better support 

system if she were to take custody of E.H.

{¶49} Mr. Collins is concerned that given Appellant bond with E.H., she should not 

have given him back to the parents when so many issues existed without calling the 

Agency. The Guardian ad Litem testified it would be in the child’s best interest to grant 

the Agency permanent custody of E.H.

{¶50} The trial court then recessed until November 23, 2020.

{¶51} At the November 23, 2020 hearing, the trial court heard a motion on granting 

legal custody to Appellant. 

{¶52} Appellant testified she is E.H.’s maternal grandmother. She owns her own 

home with four bedrooms and two bathrooms. E.H. will have his own bedroom. Appellant 

is on unemployment due to COVID. 

{¶53} Appellant has a conviction for disorderly conduct. She took her dog to a 

bingo hall. She parked the car in the shade and put the windows down. She testified the 

dog had water and food. She went into the bingo hall and came out after forty-five minutes 
Licking County, Case No. 2022CA00017 11

to check on the dog. She got into an altercation with officers when they tried to get her to 

leave the bingo hall to take care of the dog.

{¶54} Appellant testified J.H. had behavioral issues in her youth, but she does not 

recall beating J.H. with a belt. She said that J.H. is still lying about Appellant’s abuse.

{¶55} The hospital discharged E.H. to Appellant after he was born, as two of his 

siblings were sick. After returning E.H. to his parents three days later, E.H. was in the 

hospital with a respiratory issue. Again, the hospital discharged E.H. to Appellant. J.H. 

and the children stayed with Appellant for four days until J.H. wanted to go back to live 

with B.H. Appellant did not agree with this and did not want to take the children back. J.H. 

called the police and told them Appellant kidnapped her children. When the police arrived, 

they wanted to know why Appellant did not want to give the children back. She said 

because the parents were fighting.

{¶56} Three weeks after the incident, E.H. went back into the hospital. Appellant 

stayed with E.H. at the hospital.

{¶57} With relation to the incident with Ms. Ashcraft at a visitation, Appellant said 

she saw B.H. in Ms. Ashcraft’s car, and it did not seem right to her. Then J.H. finished her 

visitation and got angry with Ms. Ashcraft and B.H. 

{¶58} Appellant has had three visits with E.H. She believes E.H. is enjoying his 

time with her. She does not believe removing E.H. from his foster home would traumatize 

him.

{¶59} Appellant believes it is in the best interest of E.H. to be placed with her. She 

is his grandmother, has been part of his life since he was born, she believes she can 
Licking County, Case No. 2022CA00017 12

provide a home for him and support him. Her support network has not met E.H. due to 

his being hospitalized and then placed into foster care.

{¶60} Next, Palma Ashcraft retook the stand. Ms. Ashcraft testified she has not 

spoken with Appellant about E.H.’s medical care. Appellant has only information provided 

by J.H. or B.H.

{¶61} Ms. Palma observed Appellant’s visits with E.H. Appellant would play and 

sing to E.H. E.H. looked to be enjoying himself, but after the visit he wanted to get away 

from the visitation staff and back to his foster mom.

{¶62} Ms. Palma also testified that with Appellant’s history of physical abuse, it is 

not in the best interest of E.H. to be placed with her. Ms. Palma also notes Appellant’s 

work schedule would require E.H. to be shuffled around from Appellant to either her friend 

or her nephew. Ms. Palma does not believe this is a good situation for a child with special 

needs. 

{¶63} Mr. Collins then testified that he still believes it is not in the best interest of 

E.H. to be placed with Appellant. Mr. Collins is concerned about Appellant’s financial 

position. He also believes E.H. is bonded to his foster family. Mr. Collins disagrees with 

Appellant that removing E.H. from his foster family would not be traumatizing. E.H. has 

bonded significantly with his foster family, and any removal will have an impact on the 

child, especially removing him from his foster mother. He believes it is in the best interest 

of E.H. to be placed in the Agency’s permanent custody.

{¶64} On February 18, 2021, the Magistrate issued a decision denying Appellant 

legal custody of E.H., and granting permanent custody of E.H. to the Agency.

{¶65} On March 3, 2021, Appellant objected to the Magistrate’s Decision.
Licking County, Case No. 2022CA00017 13

{¶66} On March 4, 2021, Appellant objected to the Magistrate’s Decision.

{¶67} On March 1, 2022, the trial court adopted the decision of the Magistrate 

above Appellant’s and Appellant’s objections.

{¶68} On March 28, 2022, Appellant filed a Notice of Appeal.

{¶69} On May 25, 2022, Appellant filed a merit brief with this Court.

{¶70} On June 17, 2022, this Court granted Appellee’s Motion for Extension of 

Time to file a Brief.

{¶71} Appellee did not file a merit brief arguing Appellee’s case.

ASSIGNMENT OF ERROR

{¶72} Appellant timely filed her notice of appeal and raises the following two 

Assignment of Error:

{¶73} “I. THE TRIAL COURT ERRED IN GRANTING PERMANENT CUSTODY 

TO AGENCY WHEN THE MANIFEST WEIGHT OF THE EVIDENCE SUPPORTED THE 

CONCLUSION THAT A LEGALLY SECURE PERMANENT PLACEMENT COULD BE 

ACHIEVED IN MATERNAL GRANDMOTHER, [APPELLANT]’S CUSTODY WITHOUT 

THE GRANTING OF PERMANENT CUSTODY AND TERMINATION OF PARENTAL 

RIGHTS.

{¶74} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE 

MOTION FOR LEGAL CUSTODY TO GRANDMOTHER AND AWARDING LEGAL 

CUSTODY TO THE AGENCY.”
Licking County, Case No. 2022CA00017 14

I., II.

{¶75} We address Appellant’s assignments of error together. Appellant argues the 

trial court erred in denying Appellant’s motion for legal custody and granting permanent 

custody to the Agency. We disagree.

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

credibility of the witnesses. We must 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). When reviewing 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 

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

determine “whether in resolving conflicts in the evidence, the finder of fact clearly lost its 

way and created such a manifest miscarriage of justice that the decision must be 

reversed and a new trial ordered.” Matter of A.D., 5th Dist. Guernsey No. 19 CA 20, 2019-

Ohio-3671, ¶9.

{¶77} A trial court may award legal custody to a non-parent after finding that legal 

custody is in the child’s best interests. R.C. 2151.353(A)(3); R.C. 2151.415(B); Stull v 

Richland Cty. Children Services, 5th Dist. Richland Nos. 11CA47 and 11CA48, 2012-

Ohio-738, 71 N.E.3d 660, ¶22. The court’s determination as to whether the facts make it 
Licking County, Case No. 2022CA00017 15

in the child’s best interest to be placed in legal custody, an appellate court applies the 

abuse of discretion standard. Id.

{¶78} In order to find an abuse of discretion, we must determine the trial court’s 

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or 

judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶79} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re 

Murray, 52 Ohio St.3d 155, 157, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 

U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must 

be based on clear and convincing evidence. R.C. §2151.414(B)(1). 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). “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.” Id. at 477, 120 N.E.2d 118. If some competent, credible evidence going to all 

essential elements of the case supports the trial court’s judgment, an appellate court must 

affirm the judgment and not substitute its judgment for that of the trial court. C.E. Morris 

Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).

{¶80} Issues relating to the credibility of witnesses and the weight to be given to 

the evidence are primarily for the trier of fact. Seasons Coal vs. Cleveland, 10 Ohio St.3d 

77, 80, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is 

“crucial in a child custody case, where there may be much evidence in the parties’ 
Licking County, Case No. 2022CA00017 16

demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 

Ohio St.3d 415, 419, 1997-Ohio-260, 674 N.E.2d 1159.

{¶81} This Court set forth a trial court’s analysis of a permanent custody motion 

in In the Matters of: A.R., B.R., W.R., 5th Dist. Stark Nos. 2018CA00091, 2018CA00097, 

2018CA00098, 2019-Ohio-389. When deciding a motion for permanent custody a trial 

court must follow guidelines provided in R.C. §2151.414. R.C. §2151.414(A)(1) mandates 

the trial court schedule a hearing and provide notice upon filing of a motion for permanent 

custody of a child by a public children services agency or private child placing agency 

that has temporary custody of the child or has placed the child in long-term foster care.

{¶82} R.C. §2151.414(B) authorizes the juvenile court to grant permanent custody 

of the child to the public or private agency if the court determines, by clear and convincing 

evidence, it is in the best interest of the child to grant permanent custody to the agency, 

and that 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 no relatives of the child are able to take permanent custody; or (d) the child has been 

in the temporary custody of one or more public children’s services agencies or private 

child placement agencies for twelve or more months of a consecutive twenty-two month 

period.

{¶83} Therefore, R.C. §2151.414(B) establishes a two-pronged analysis the trial 

court must apply when ruling on a motion for permanent custody. In practice, the trial 

court will usually determine whether one of the four circumstances delineated in R.C. 
Licking County, Case No. 2022CA00017 17

§2151.414(B)(1)(a) through (d) is present before proceeding to a determination regarding 

the best interest of the child.

{¶84} In the case sub judice, the trial court found E.H. has been in the custody of 

the Agency for longer than twelve (12) of the last twenty-two (22) consecutive months. 

Pursuant to R.C. §2151.414(B)(1)(a), the trial court also found E.H. could not be placed 

with either of the parents within a reasonable time or should not be placed with E.H.’s 

parents.

{¶85} In making this decision, the trial court must consider the factors of R.C. 

§2151.414(E), which states, in relevant part:

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

section or for the purposes of division (A)(4) of section 2151.353 of the 

Revised Code whether a child cannot be placed with either parent within a 

reasonable period of time or should not be 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 

or for purposes of division (A)(4) of section 2151.353 of the Revised Code 

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:

(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 
Licking County, Case No. 2022CA00017 18

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;

(3) The parent committed any abuse as described in section 

2151.031 of the Revised Code against the child, caused the child to suffer 

any neglect as described in section 2151.03 of the Revised Code, or 

allowed the child to suffer any neglect as described in section 2151.03 of 

the Revised Code between the date that the original complaint alleging 

abuse or neglect was filed and the date of the filing of the motion for 

permanent custody;

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

child by failing to regularly support, visit, or communicate with the child when 
Licking County, Case No. 2022CA00017 19

able to do so, or by other actions showing an unwillingness to provide an 

adequate permanent home for the child;

***

(16) Any other factor the court considers relevant.

{¶86} In determining whether the child can be placed with either parent within a 

reasonable time, the court stated that it had considered all relevant evidence and all 

factors specifically enumerated in R.C. §2151.414(E). Based on the testimony presented, 

the trial court found that E.H. had been in temporary custody of the Agency for more than 

twelve months out of a consecutive twenty-two-month period.

{¶87} The trial court further found that efforts made by the Agency to work with 

the parents of E.H. have been reasonable and appropriate and followed E.H.’s best 

interest. The Agency used reasonable efforts to prevent the removal of E.H. from the 

home, to remedy the conditions that led to removal of E.H., and to make it possible for 

E.H. to return home. Specifically, the trial court found these reasonable efforts based on 

the following actions taken by the Agency: identified areas of concern related to J.H. and 

B.H., the need to address substance abuse and mental health issues, stability of housing 

and income, and demonstrate appropriate parenting practices, facilitation of visits with 

Appellant, B.H., and J.H., foster placement, and case planning for both B.H. and 

Appellant.

{¶88} “The discretion which the juvenile court enjoys in determining whether an 

order of permanent custody is in the best interest of a child should be accorded the utmost 

respect, given the nature of the proceeding and the impact the court’s determination will 

have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. No. 
Licking County, Case No. 2022CA00017 20

2000CA0024, 2000 WL 1700073 (Nov. 13, 2000), citing In re Awkal, 95 Ohio App.3d 309, 

316, 642 N.E.2d 424 (8th Dist. 1994).

{¶89} In determining the best interest of the child at a permanent custody hearing, 

R.C. §2151.414(D)(1) requires the trial court must 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 placement 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;
Licking County, Case No. 2022CA00017 21

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

apply in relation to the parents and child.

{¶90} No one element is given greater weight or heightened significance. In re 

C.F., 113 Ohio St.3d 73, 2007-Ohio-1104, 862 N.E.2d 816.

{¶91} “A child’s best interest are served by the child being placed in a permanent 

situation that fosters growth, stability, and security. In re P.S., 5th Dist. Licking No. 16-CA11, 2016-Ohio-3489, ¶57. A relative’s willingness to care for the child does not alter the 

court’s considerations in deciding permanent custody. Id. 

{¶92} The trial court’s decision indicates it considered the best interest of the child. 

The trial court concluded the child’s need for legally secure placement could not be 

achieved without awarding permanent custody to the Agency. Upon review of the entire 

record, it is clear that the record supports the trial court’s finding that granting the motion 

for permanent custody is in the child’s best interest.

{¶93} J.H. exposed E.H. to J.H.’s substance abuse, lack of stable housing, 

domestic violence, and mental health issues. E.H. was born twenty-eight weeks 

premature, addicted to marijuana and cocaine. E.H. has been diagnosed with early 

cerebral palsy and had to be hospitalized due to weight loss and lack of development. 

J.H. did not complete substance abuse and mental health courses and consistently tested 

positive for controlled substances, mostly marijuana and methamphetamine. J.H. never 

obtained steady employment or secured appropriate, stable housing. B.H., while 

attending substance abuse classes, does not acknowledge the illegality of marijuana and 

has no intention of quitting. B.H. was not present at the hearings for permanent custody 
Licking County, Case No. 2022CA00017 22

or legal custody. B.H. has acknowledge that he is not in a position to care for a child with 

special needs. 

{¶94} The Agency also explored placing E.H. with Appellant. Appellant, E.H.’s 

maternal grandmother, moved to request legal custody of E.H. The trial court found 

Appellant had failed to recognize and appreciate the significant ties E.H. has with his 

foster family. E.H. has a limited relationship with Appellant, and while the trial court noted 

Appellant cares for the child, E.H. turns to his foster family for reassurance and comfort. 

E.H.’s special needs have affected his ability to bond with Appellant

{¶95} E.H. shows visible excitement when around his foster parents and siblings, 

and displays trust and ease towards them. His foster parents have managed his cerebral 

palsy and he is thriving under their care. They ensure he attends all therapy and medical 

appointments and are well versed in his special needs. The foster parents have a safe, 

stable home, and are committed to E.H. and desire to adopt him. The trial court found 

that E.H.’s best interests will be served by denying Appellant’s motion for legal custody 

and granting the Agency permanent custody.

{¶96} The guardian ad litem recommended permanent custody be granted to the 

Agency because E.H. could not be safely reunited with the parents. He has concerns 

about Appellant financially meeting the needs of herself and E.H., and that E.H. has 

bonded significantly with his foster family.

{¶97} We find that the trial court’s determination that permanent custody to the 

Agency was in the child’s best interest was based upon competent, credible evidence, 

and was not against the manifest weight of the evidence. The trial court did not abuse its 
Licking County, Case No. 2022CA00017 23

discretion in finding it was not in the child’s best interest to be placed in Appellant’s legal 

custody.

{¶98} Appellant’s first and second Assignments of Error are overruled.

{¶99} For the foregoing reasons, the judgment of the Court of Common Pleas, 

Juvenile Division of Licking County, Ohio, is hereby affirmed.

By: Wise, John, J.

Wise, Earle, P. J., and

Hoffman, J., concur.

JWW/br 0830