[Cite as In re S.M., 2017-Ohio-1481.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF WAYNE ) 

IN RE: J.M. 

 S.M. 

 

 

 

C.A. Nos. 16AP0074 

16AP0075 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF WAYNE, OHIO 

CASE Nos. 2014 JUV-C 000551 

2014 JUV-C 000552 

DECISION AND JOURNAL ENTRY 

Dated: April 24, 2017 

 

HENSAL, Presiding Judge. 

{¶1} Appellant, R.M. (“Father”), appeals the judgment of the Wayne County Court of 

Common Pleas, Juvenile Division, that terminated his parental rights to his minor children, S.M. 

and J.M., and placed them in the permanent custody of Wayne County Children Services 

(“CSB”). This Court affirms. 

I. 

{¶2} S.M. (d.o.b. 4/8/04) and J.M. (d.o.b. 4/2/06) had spent most of their lives in 

Father’s custody and care, and were living with him in May 2014, when CSB filed a complaint 

alleging that the children were dependent, neglected, and abused. The agency premised the 

allegations in large part on an incident of domestic violence between Father and his girlfriend 

(“Girlfriend”). Girlfriend hit Father’s car with an axe and broke the window with a chair leg. 

Both children were in the car at the time of the incident, and S.M. sustained a laceration 
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requiring stitches as a result of the broken glass. During the incident, Father pushed Girlfriend 

down, pulled her hair, and threw pieces of broken furniture, all in the presence of the children. 

G.B. (“Mother”) was in residential drug treatment at the time. Both Mother and Father have a 

lengthy history with Wayne and Cuyahoga Counties Children Services, involving issues of 

domestic violence, substance abuse, and ongoing concerns arising out of the parents’ failure to 

provide for the children’s basic needs. Based on these concerns, the children were removed from 

Father’s custody and placed in the emergency temporary custody of CSB. 

{¶3} At the adjudication hearing, Father stipulated to a finding that the children were 

neglected. Mother, who did not personally appear because she was in drug treatment, indicated 

through her attorney that, although she had no information regarding the truth of the allegations, 

she did not wish to contest them. CSB dismissed the allegations of dependency and abuse, and 

the juvenile court found that S.M. and J.M. were neglected. Upon disposition, the juvenile court 

granted temporary custody to CSB, and ordered both supervised and unsupervised weekly 

visitation for Father. In addition, the court ordered that Father was to have no contact with 

Girlfriend. The trial court adopted the agency’s proposed case plan. 

{¶4} Father moved for legal custody. At the hearing on the motion, the trial court 

returned the children to Father’s legal custody under an order of protective supervision by CSB. 

The court further ordered that neither Father nor the children were to have any contact with 

Girlfriend. Three months later, CSB moved for immediate review of the custodial arrangement, 

based on information, inter alia, that Girlfriend was living with Father and the children, and that 

Father and Girlfriend had gotten into a fight in public. At the hearing on CSB’s motion, the 

juvenile court maintained the children in Father’s legal custody under an order of protective 

supervision by the agency. It further maintained the prior orders, including the no contact order 
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relative to Girlfriend. At a subsequent review hearing, the juvenile court granted a motion by 

CSB for a first six-month extension of protective supervision. 

{¶5} Approximately seven weeks later, however, CSB filed an emergency motion to 

modify disposition, requesting an emergency order of temporary custody. In support, the agency 

alleged that there was a domestic violence complaint involving law enforcement arising at 

Father’s home between him and Girlfriend, and resulting in Father’s arrest. In addition, the 

agency had lost contact with Mother after the previous review hearing. The juvenile court 

granted an emergency order of temporary custody of the children to CSB and scheduled a shelter 

care hearing. 

{¶6} At the hearing on CSB’s motion to modify custody, the parents waived the 

presentation of evidence. Father admitted that he had violated the no contact order and that he 

and Girlfriend had gotten into a violent altercation. The juvenile court placed the children in the 

temporary custody of CSB, ordered weekly visitation for the parents, and maintained the no 

contact order. A few months later, the trial court granted a second six-month extension, 

maintaining the children in the temporary custody of the agency. 

{¶7} As the case approached the two-year time limit, Father moved for legal custody 

and CSB moved for permanent custody. The juvenile court held a two-day evidentiary hearing 

on the final dispositional motions. The guardian ad litem recommended that the children be 

placed in the permanent custody of the agency. The juvenile court found that the children had 

been in the temporary custody of CSB for 12 or more months of a consecutive 22-month period 

and that an award of permanent custody to the agency was in the children’s best interest. The 

court denied Father’s motion for legal custody and granted CSB’s motion for permanent custody. 
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Father timely appealed and secured a stay of judgment. He raises one assignment of error for 

review. 

{¶8} Mother filed untimely appeals from the judgments regarding each child. This 

Court dismissed her appeals by journal entry. In re J.M. and S.M., 9th Dist. Summit Nos. 

16AP0086, 16AP0087 (Mar. 23, 2017). 

II. 

ASSIGNMENT OF ERROR

THE WAYNE COUNTY JUVENILE COURT ERRED BY GRANTING THE 

STATE’S MOTION FOR PERMANENT CUSTODY BECAUSE ITS 

DETERMINATION THAT THE BEST INTERESTS OF J.M. AND S.M. 

WOULD BE SERVED BY THE GRANTING OF PERMANENT CUSTODY 

WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE. 

{¶9} Father argues that the trial court’s finding that an award of permanent custody 

was in the best interest of the children in satisfaction of the second prong of the permanent 

custody test was not supported by sufficient evidence and was against the manifest weight of the 

evidence. This Court disagrees. 

{¶10} Sufficiency and weight of the evidence are both quantitatively and qualitatively 

distinct. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 23. “[S]ufficiency is a test 

of adequacy. Whether the evidence is legally sufficient to sustain a [judgment] is a question of 

law.” Id. at ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). 

{¶11} In considering whether the juvenile court’s judgment is against the manifest 

weight of the evidence, this Court “weighs the evidence and all reasonable inferences, considers 

the credibility of witnesses and determines 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 

[judgment] must be reversed and a new [hearing] ordered.” (Internal quotations and citations 
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omitted.) Eastley at ¶ 20. When weighing the evidence, this Court “must always be mindful of 

the presumption in favor of the finder of fact.” Id. at ¶ 21. 

{¶12} Before a juvenile court may terminate parental rights and award permanent 

custody of a child to a proper moving agency, it must find clear and convincing evidence of both 

prongs of the permanent custody test: (1) that the child is abandoned; orphaned; has been in the 

temporary custody of the agency for at least 12 months of a consecutive 22-month period; the 

child or another child of the same parent has been adjudicated abused, neglected, or dependent 

three times; or that the child cannot be placed with either parent, based on an analysis under R.C. 

2151.414(E); and (2) that the grant of permanent custody to the agency is in the best interest of 

the child, based on an analysis under R.C. 2151.414(D)(1). R.C. 2151.414(B)(1) and 

2151.414(B)(2); see also In re William S., 75 Ohio St.3d 95, 99 (1996). Clear and convincing 

evidence is that which will “produce in the mind of the trier of facts a firm belief or conviction as 

to the facts sought to be established.” (Internal quotations omitted.) In re Adoption of Holcomb, 

18 Ohio St.3d 361, 368 (1985), quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph 

three of the syllabus. 

{¶13} The juvenile court found that the first prong of the permanent custody test was 

satisfied because S.M. and J.M. had been in the temporary custody of CSB for at least 12 of 22 

consecutive months. Father does not challenge that finding; rather, he solely challenges the 

finding that permanent custody is in the best interest of the children. 

{¶14} When determining whether a grant of permanent custody is in a child’s best 

interest, the juvenile court must consider all the relevant factors, including those enumerated in 

R.C. 2151.414(D)(1): the interaction and interrelationships of the child, the wishes of the child, 

the custodial history of the child, the child’s need for permanence and whether that can be 
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achieved without a grant of permanent custody, and whether any of the factors outlined in R.C. 

2151.414(E)(7)-(11) apply. R.C. 2151.414(D)(1)(a)-(e); see also In re R.G., 9th Dist. Summit 

Nos. 24834, 24850, 2009-Ohio-6284, ¶ 11. 

Interactions and interrelationships, including the children’s wishes 

{¶15} The first best interest factor requires the juvenile court to consider 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[.]” R.C. 

2151.414(D)(1)(a). The second best interest factor requires consideration of 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[.]” R.C. 2151.414(D)(1)(b). 

{¶16} Mother has played a very limited role in the children’s lives, in large part because 

of long term substance abuse issues which have resulted in her repeated incarcerations and stays 

in residential treatment programs, as well as her inability to maintain employment and stable 

housing. No party, including Mother, has proposed that it would be in the children’s best interest 

to be placed with Mother. 

{¶17} Until the children’s removal, Father had been their primary caregiver. There is no 

dispute that Father and the children have always had close and loving relationships with one 

another. Father is deeply committed to the idea (if not the acts necessary) of caring for the 

children, and has in some instances adequately provided for their basic needs. The children have 

consistently expressed a desire to live with Father. Caseworkers, therapists, and the guardian ad 

litem have all testified that there is a close bond between Father and the children, and that the 

children will suffer some harm if that bond is severed. 
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{¶18} The children, a brother and sister who were 12 and 10 years old at the time of the 

hearing, have always been together except for a very brief stay in separate foster homes. They 

appear to have a fairly normal sibling relationship, including moments of both solidarity and 

bickering, although J.M. has shown some physical aggression towards her brother. The children 

have generally acclimated well in their foster home environments, although J.M. has exhibited 

some attention-seeking behaviors, including attempting to dress provocatively and smearing her 

feces on the walls. The foster mother was able to mitigate the child’s extreme behaviors. At 

some point, the children disrupted from a foster care placement based on allegations by another 

foster child that both S.M. and J.M. had perpetrated acts of sexual abuse. They are currently in 

another foster home under intense supervision of the foster parents. According to the guardian 

ad litem, incidents of inappropriate behavior by J.M. have waned. 

{¶19} Father and the children had limited contact in the several months preceding the 

hearing. Because of a bed bug infestation in Father’s apartment, the children were not permitted 

to visit with Father there. Moreover, CSB policy prohibits visitors who are exposed to bed bugs 

from coming to their facility, so visitation could not be facilitated at the agency either. Although 

Father and the children were permitted to have liberal telephone visitation, Father often would 

not answer his phone when the children called. Father had not answered calls from the children 

in the two weeks prior to the second day of hearing. Early on, the children spoke with Father on 

a daily basis. As the case continued and Father often did not answer his phone, however, the 

children requested weekly phone conversations which lasted about five minutes per child. 

{¶20} While there was testimony in this case that Father did not pose any threat to the 

children, and that he would in fact take measures to protect the children, Father was responsible 

for exposing the children to Girlfriend whose presence has had a significant effect on them. 
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There is no dispute that the interaction and interrelationship of the children with Girlfriend 

created a danger to the children’s psychological, emotional, and physical health and wellbeing. 

Father and Girlfriend interact aggressively and violently. The initial removal of the children was 

premised on a violent altercation between Father and Girlfriend in the presence of the children. 

During that incident, as the children sat in Father’s car, Girlfriend swung an axe in a fit of rage 

and hit the car. She then began to beat on the car’s windows with the wooden leg of a chair. Her 

efforts shattered a car window, hurling shards of glass upon the occupants. Bits of glass 

lacerated S.M.’s leg, requiring stitches. Father admitted that the children were scared and crying 

as a result of Girlfriend’s actions. 

{¶21} On another occasion after the juvenile court returned the children to Father under 

an order of protective supervision, deputies were called to a trailer park where Father was living 

with the children and Girlfriend. The two were engaged in a violent altercation, not merely in 

front of the children, but involving one of the children. At one point during the altercation, 

Girlfriend gave a knife to S.M. and told him to stab Father. A deputy arrested Father when the 

investigation indicated that Father had been the primary aggressor. As Father was being 

arrested, he requested that the deputy call CSB to take the children into custody because he was 

afraid for their safety if they were left with Girlfriend. Father admitted that he believed 

Girlfriend would harm his children, because she had physically abused another of her own 

children. 

{¶22} There was evidence that Girlfriend had berated the children on multiple occasions 

and commented that she would kill them. She physically abused one of her own children while 

S.M. and J.M. were present. Girlfriend’s three children (two of whom were fathered by Father), 

are the subjects of a dependency, neglect, abuse action in Cuyahoga County. 
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{¶23} Recognizing the detrimental effect of the Father-Girlfriend dynamic on the 

children, the juvenile courts in both Cuyahoga and Wayne Counties issued no contact orders, 

prohibiting Girlfriend from having any contact with Father or the children. Nevertheless, Father 

was never able to demonstrate that he could fully disengage from Girlfriend. In fact, at the time 

of the final dispositional hearing, Girlfriend was pregnant with her third child with Father. In 

attempting to explain his failure to break ties with Girlfriend, Father asserted that it was difficult 

to do given that they had children together. In the absence of evidence that Father had 

terminated his relationship with Girlfriend, she would continue to have a detrimental impact on 

the children should they be returned to Father’s custody. 

Custodial history of the children 

{¶24} The third best interest factor requires consideration of the children’s custodial 

history, including whether they have been in the temporary custody of CSB for 12 or more 

months of a consecutive 22-month period. R.C. 2151.414(D)(1)(c). 

{¶25} From the children’s birth, Father was their primary caregiver, even when Mother 

was not in jail or residential drug treatment. S.M. and J.M. were 10 and 8 years old, 

respectively, when they were removed from Father’s custody due to a violent incident between 

Father and Girlfriend, during which S.M. was physically injured. CSB was awarded temporary 

custody. Although Father regained legal custody during the pendency of the case, it was shortlived. The children were again removed from Father after another violent incident between 

Father and Girlfriend. By the time CSB filed its motion for permanent custody on April 19, 

2016, the children had been in the agency’s temporary custody in excess of 12 months during a 

consecutive 22-month period. 
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Need for a legally secure permanent placement; less restrictive viable options 

{¶26} The fourth best interest factor requires the juvenile court to consider the children’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[.]” R.C. 2151.414(D)(1)(d). 

{¶27} Neither parent has demonstrated the ability to provide a safe, stable home for the 

children. Mother has not been able to maintain stable housing or employment due to her 

frequent incarcerations, disappearances, and involvement in residential drug treatment programs. 

{¶28} Father had multiple residences during the pendency of the case, due in part to an 

eviction from one home and ejection from a campground due to loud interaction between Father 

and Girlfriend. Father had been living in a 2-bedroom Metropolitan Housing unit for about six 

months as of the first date of the hearing. The apartment was infested with bed bugs for several 

months, and Father threw away all his furniture due to the infestation. As of the second date of 

the hearing, Father had acquired an inflatable mattress for one child, but no furniture for the 

other. Girlfriend had kicked a hole in Father’s door to gain access to his apartment. As of the 

date of the hearing, the hole had not been repaired, although Father testified that a work order for 

repair was pending. Father was hoping to terminate his lease and find alternate housing, leaving 

his future housing situation speculative. 

{¶29} Father’s employment history was also unstable. He was not always forthcoming 

to the agency with information regarding his employment. By the time of the hearing, he had 

obtained a manual labor job as an independent contractor, working 20-30 hours per week, 

earning $800-1000 per month before taxes. Father admitted that he had had some negative 

interactions with coworkers. In fact, he did not go to work one day because he was so angry at a 

coworker. 
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{¶30} According to Father’s various mental health counselors, Father has been 

diagnosed with (1) intermittent explosive disorder, which results in overreactions to provocation; 

(2) antisocial personality disorder with strong dependent features, a lifelong diagnosis typically 

not responsive to counseling, which presents as a rejection of social norms; (3) cannabis use 

disorder (moderate); and (4) other or substance induced depressive disorder, manifesting in 

symptoms of depression which may be linked to Father’s situation or substance abuse. One of 

Father’s counselors testified that Girlfriend is a “trigger” for Father, and that ongoing contact 

between the two would hinder Father’s ability to manage his anger. The psychologist who 

performed Father’s evaluation for CSB emphasized that Girlfriend’s erratic and violent behavior 

impacts Father’s mental health because his dependent personality makes it difficult for him to 

separate himself from her. Her emotional difficulties become Father’s emotional difficulties. 

Moreover, their interactions have resulted in numerous reports to law enforcement and Father’s 

multiple arrests for domestic violence, as well as an arrest for assault on a neighbor whom 

Girlfriend had accused of touching her inappropriately, all evidence of Father’s difficulty 

adhering to socially acceptable behavior. 

{¶31} There was a general consensus among caseworkers and counselors that, although 

Father had participated in counseling and made an effort in that regard, he had not demonstrated 

sufficient progress to support his successful discharge from ongoing services. His lack of 

success is evidenced in his inability to sever ties with Girlfriend. Although Father claimed that 

he no longer had a relationship with Girlfriend, multiple witnesses testified to having seen them 

together near Father’s home and near the agency, once as recently as two days before the second 

date of the hearing. Mother testified that she had been staying with Girlfriend for several days 
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prior to the second date of the hearing and that she and Girlfriend drove by Father’s apartment, 

where Father and Girlfriend had a brief conversation punctuated by Girlfriend’s taunts. 

{¶32} One of Father’s counselors testified that Father could modify his antisocial 

behavior only if the modification served his personal interests. No witness disputed Father’s 

interest in his children. However, he consistently demonstrated that his greater interest lay with 

maintaining a relationship with Girlfriend, rather than meeting the children’s needs for safety and 

security. 

{¶33} S.M. and J.M. have their own special needs. Both have IEPs to address 

deficiencies in certain educational areas. Although Father professed to be very involved in 

addressing the children’s educational needs, he testified that he played video games with his son 

to address S.M.’s reading and comprehension deficiencies. In addition, both children present 

with emotional and mental health issues. S.M. has been diagnosed with oppositional defiant 

disorder, manifesting in explosive anger, tantrums, difficulty following rules, and blaming others 

for his behavior. Treatment requires skillful parental involvement. Father has not been engaged 

in developing the necessary parenting skills to address his son’s needs, although S.M.’s foster 

parents’ involvement gave rise to the child’s significant progress. J.M., too, has been diagnosed 

with oppositional defiant disorder, and has exhibited some physical aggression towards others, 

mirroring the violence to which she has been exposed as a result of Father’s and Girlfriend’s 

relationship. Father has not demonstrated his ability to terminate his relationship with Girlfriend. 

Therefore, it is likely that the children would continue to be exposed to violence in their home, 

were they to be returned to Father’s custody. 

{¶34} Multiple caseworkers involved in this case, as well as the guardian ad litem, 

asserted that the children required permanency after almost two years, and that their best interest 
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could only be served by an award of permanent custody. In all cases, the witnesses emphasized 

the harm to which the children had been subjected due to exposure to Girlfriend, and Father’s 

refusal or inability to sever his relationship with Girlfriend. 

Applicability of R.C. 2151.414(E)(7)-(11) factors 

{¶35} The fifth best interest factor requires consideration of whether any of the factors 

in R.C. 2151.414(E)(7)-(11) are applicable. R.C. 2151.414(D)(1)(e). 

{¶36} In this case, Mother admitted that her parental rights to another child had 

previously been involuntarily terminated. R.C. 2151.414(E)(11). 

Conclusion 

{¶37} The record demonstrates that the evidence is legally sufficient to sustain an award 

of permanent custody of the children to CSB. See Eastley, 132 Ohio St.3d 328, 2012-Ohio-2179, 

at ¶ 11. Moreover, there is nothing in the record to demonstrate that the juvenile court clearly 

lost its way and created a manifest miscarriage of justice in finding that it was in the best interest 

of S.M. and J.M. to be placed in the permanent custody of the agency. See id. at ¶ 20. The 

lynchpin of the case in favor of the denial of Father’s motion for legal custody and the award of 

permanent custody to CSB is the abundance of clear and convincing evidence regarding the 

threat to the children’s safety and wellbeing arising from their exposure to Girlfriend, and 

Father’s failure to sever his relationship with her. Despite Girlfriend’s threats, verbal assaults, 

and acts of violence which gave rise to physical, emotional, and psychological harm to the 

children, Father repeatedly exposed the children to her, notwithstanding the existence of no 

contact orders issued out of two courts. Moreover, although the children were twice removed 

from Father due to violent incidents involving Girlfriend, he maintained a relationship with her 

(even fathering another child), knowing that the children’s custodial dispositions hinged on their 
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best interest, rather than Father’s personal desires. As the best interest of the children militated 

against their further exposure to ongoing acts of violence perpetrated and/or instigated by 

Girlfriend, and where Father demonstrated an inability or refusal to remove her from his life and 

the lives of the children, the juvenile court’s award of permanent custody was supported by 

sufficient evidence and was not against the manifest weight of the evidence. Father’s assignment 

of error is overruled. 

III. 

{¶38} Father’s sole assignment of error is overruled. The judgment of the Wayne 

County Court of Common Pleas, Juvenile Division, is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 
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 Costs taxed to Appellant. 

 

 JENNIFER HENSAL 

 FOR THE COURT 

TEODOSIO, J. 

CALLAHAN, J. 

CONCUR. 

APPEARANCES: 

MICHELLE FINK, Attorney at Law, for Appellant. 

DANIEL R. LUTZ, Prosecuting Attorney, and MELODY L. BRIAND, Assistant Prosecuting 

Attorney, for Appellee.