[Cite as In re B.M.S., 2021-Ohio-421.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

IN THE MATTER OF: B.M.S. : JUDGES: 

 : 

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

 : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

 : 

 : Case No. 20-COA-004 

 : 

 : 

 : 

 : 

 : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court 

of Common Pleas, Juvenile Division, 

Case No. 20163059 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: February 16, 2021 

APPEARANCES: 

For Appellant Mother: For Appellee State of Ohio: 

 

EMILY M. BATES CHRISTOPHER R. TUNNELL 

46 W. Main St. ASHLAND CO. PROSECUTOR 

Ashland, OH 44805 COLE F. OBERLI 

 110 Cottage St., Third Floor

 Ashland, OH 44805 

 
Ashland County, Case No. 20-COA-004 2 

Delaney, J. 

{¶1} Appellant Mother appeals from the December 11, 2019 Opinion and 

Judgment Entry of the Ashland County Court of Common Pleas, Juvenile Division, 

granting permanent custody of B.M.S. to the Ashland County Department of Job and 

Family Services (“Agency”). Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} This case arose on June 5, 2017, when Sgt. Aaron Kline of the Ashland 

Police Department was contacted by Mother’s adult daughter who complained Mother 

was intoxicated and walking to an address on Taylor Street. Kline encountered Mother 

walking as she held a baby and Kline noticed red marks and scabs all over the baby’s 

body. This baby was B.M.S., the subject of the instant case. Kline could smell an odor 

of an alcoholic beverage about Mother’s person. He photographed the baby, and Mother 

said B.M.S. was being treated for eczema but she had recently missed a doctor’s 

appointment. Kline testified that Mother admitted consuming four to five beers and 

smoking weed within the last week. 

{¶3} At that point Kline arrested Mother and contacted the Agency regarding 

removal of the children. Kline testified that after he placed Mother under arrest, she said 

she had consumed 30 to 35 beers and that she smoked crack and snorted cocaine with 

her father the night before. Mother threatened to kill herself and was transported to a 

hospital. 

{¶4} Due to Mother’s arrest and condition, B.M.S. and her other children, L.S.IV 

and A.S., were removed. The Agency filed complaints alleging the three children to be 

dependent pursuant to R.C. 2151.04(C). Mother later admitted to the complaints and all 
Ashland County, Case No. 20-COA-004 3 

three children were adjudicated dependent. The children were placed in the temporary 

custody of the Agency. 

{¶5} Regarding B.M.S., the Agency filed a motion for permanent custody on 

January 18, 2019, and the motion was heard by the court on May 25, 2019. 

{¶6} Supervisor Ashley Starcher testified on behalf of the Agency. Starcher 

oversaw this case from its inception until September 2018. She testified that Mother was 

convicted of child endangering following the incident with Kline. 

{¶7} Starcher testified about Mother’s case plan, which included all three 

children. The father of B.M.S was identified as David Colbert, who is deceased. Paternity 

was never judicially established and notice of all proceedings was served upon any 

person who might be the unknown father of B.M.S. 

{¶8} Mother was assigned drug services, mental health services, parenting 

services, and case management. Mother did participate in parenting education classes, 

and was pending completion in December 2018. As part of drug services, Mother was 

required to provide random drug tests for the Agency. Starcher testified Mother tested 

positive for cocaine on September 27, October 4, and November 17, 2017. Mother 

wanted to “get her life together” and “make changes” while she was incarcerated in 

January 2018, but she again tested positive for cocaine on May 25, June 4, June 19, and 

July 26, 2018. Starcher attributed Mother’s relapse to her family. At one point Mother 

checked herself into a rehabilitation facility but checked herself out after two days. 

{¶9} Mother also lost her housing in July 2018 and had inconsistent living 

arrangements. 
Ashland County, Case No. 20-COA-004 4 

{¶10} Caseworker Amber Barone became involved in the case in September 

2018 and also testified on behalf of the Agency. She met with Mother on October 25, 

2018, and Mother was transient with no permanent address. 

{¶11} Also on October 25, 2018, Mother tested positive for cocaine. At that time, 

Mother told Barone she was not willing to work with the Agency and that she wanted a 

new caseworker. Barone was unsuccessful in contacting Mother from November 2018 

until January 2019. In January 2019, Mother initiated contact and said she was living in 

Akron with friends. Mother agreed to come to the Agency the next Monday to meet with 

Barone and perform a drug screen. She failed to do so. Mother’s failure to meet with or 

cooperate with the Agency meant she was also not visiting with her children. 

{¶12} Caseworker Diane Chinn also testified on behalf of the Agency because 

she inherited the case from Barone. Chinn testified that her first phone contact with 

Mother was January 31, 2019. Mother had unsuccessfully attempted to receive inpatient 

drug treatment and still had no permanent address. Mother scheduled to meet with Chinn 

but then failed to appear. Chinn first met with Mother on March 18, 2019, when Mother 

visited her children at the Agency; this was Mother’s first visitation since Chinn was 

assigned to the case. 

{¶13} Mother received a mental health and substance abuse assessment on 

February 5, 2018, but completed no other counseling services. Mother was diagnosed 

with major depressive disorder, anxiety disorder, and cocaine use disorder, and further 

counseling was recommended. 

{¶14} B.M.S. was one month old at the commencement of the proceedings and 

was age 2 at the time of the permanent custody hearing. He was originally placed in he 
Ashland County, Case No. 20-COA-004 5 

same foster home as his brother, L.S. IV, but a separate foster home from their sister, 

A.S. The foster mother of B.M.S. gave birth to her own child and two infants became too 

much to care for. B.M.S. was therefore removed to a new foster home, where he has 

remained ever since. 

{¶15} The foster placement of B.M.S. is certified, safe, and appropriate. B.M.S.’ 

needs are being met and he is making satisfactory progress. He has a bonded, positive 

relationship with the other occupants of the foster home, and the foster home placement 

has indicated willingness to maintain the children in their respective placements on a longterm basis if necessary. 

{¶16} Visits between Mother and the children were permitted throughout the 

history of the cases; for the first nine months, Mother visited regularly. Then she stopped 

visiting, but recommenced in 2019. 

{¶17} It is the opinion of the caseworker and the G.A.L. that the children cannot 

be returned to Mother or their fathers and an order granting permanent custody of L.S. IV 

and B.M.S. is in the children’s best interest. A Planned Permanent Living Arrangement 

is in the best interest of A.S. 

{¶18} After the hearing, the Juvenile Court found by clear and convincing 

evidence that L.S. IV and B.M.S. be placed in the permanent custody of the Agency. A.S. 

was placed in a Planned Permanent Living Arrangement. 

{¶19} Mother now appeals from the trial court’s December 11, 2019 judgment 

entry. 
Ashland County, Case No. 20-COA-004 6 

{¶20} Mother raises one assignment of error: 

ASSIGNMENT OF ERROR 

{¶21} “THE JUDGMENT OF THE TRIAL COURT THAT THE BEST INTERESTS 

OF THE MINOR CHILD WOULD BE SERVED BY THE GRANTING OF PERMANENT

CUSTODY WAS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE 

EVIDENCE.” 

ANALYSIS 

{¶22} Mother argues the juvenile court’s decision to grant permanent custody of 

B.M.S. to the Agency is against the manifest weight and sufficiency of the evidence. We 

disagree. 

{¶23} A trial court's decision to grant permanent custody of a child must be 

supported by clear and convincing evidence. The Ohio Supreme Court has defined “clear 

and convincing evidence” as “[t]he measure or degree of proof that will produce in the 

mind of the trier of fact a firm belief or conviction as to the allegations sought to be 

established. It is intermediate, being more than a mere preponderance, but not to the 

extent of such certainty, as required beyond a reasonable doubt, as in criminal 

cases.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954); In re: Adoption of 

Holcomb, 18 Ohio St.3d 361, 481 N.E.2d 613 (1985). In reviewing whether the trial court 

based its decision upon clear and convincing evidence, “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.” State v. Schiebel, 55 Ohio St.3d 71, 74, 564 N.E.2d 54 

(1990); See also, C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 

578 (1978). If the trial court's judgment is “supported by some competent, credible 
Ashland County, Case No. 20-COA-004 7 

evidence going to all the essential elements of the case,” a reviewing court may not 

reverse that judgment. Schiebel, 55 Ohio St.3d at 74. 

{¶24} Moreover, “an appellate court should not substitute its judgment for that of 

the trial court when there exists competent and credible evidence supporting the findings 

of fact and conclusion of law.” Id. Issues relating to the credibility of witnesses and the 

weight to be given the evidence are primarily for the trier of fact. As the court explained 

in Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984): The 

underlying rationale of giving deference to the findings of the trial court rests with the 

knowledge that the trial judge is best able to view the witnesses and observe their 

demeanor, gestures and voice inflections, and use these observations in weighing the 

credibility of the proffered testimony. Moreover, deferring to the trial court on matters of 

credibility is “crucial in a child custody case, where there may be much evident in the 

parties' demeanor and attitude that does not translate to the record well.” Davis v. 

Flickinger, 77 Ohio St.3d 415, 419, 674 N.E.2d 1159 (1997); see, also, In re: Christian, 

4th Dist. Athens No. 04CA10, 2004-Ohio-3146; In re: C.W., 2nd Dist. Montgomery No. 

20140, 2004-Ohio-2040. 

{¶25} We 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, paraphrased as follows: 

 When deciding a motion for permanent custody, a trial court 

must follow the guidelines for are provided in R.C. 2151.414. R.C. 

2151.414(A)(1) requires the trial court to schedule a hearing and 

provide notice upon the filing of a motion for permanent custody of a 
Ashland County, Case No. 20-COA-004 8 

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. 

 Following a hearing on the motion, 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 there are no relatives of 

the child who are able to take permanent custody; or (d) 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. 

{¶26} In determining the best interest of the child at a permanent custody 

hearing, R.C. 2151.414(D) requires the trial court to consider all relevant factors, 

including, but not limited to: (1) the interaction and interrelationship of the child with 

the child's parents, siblings, relatives, foster parents and out-of-home providers, 

and any other person who may significantly affect the child; (2) 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; (3) the custodial history of the child; 
Ashland County, Case No. 20-COA-004 9 

and (4) 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. 

{¶27} 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. 2151.414(B)(1)(a) through (d) is present before proceeding to a 

determination regarding the best interest of the child. 

{¶28} In the instant case, Mother acknowledges B.M.S. was in the custody 

of the Agency for twelve or more months of a consecutive twenty-two-month 

period. However, she argues, he has strong relationships with Mother and his 

siblings, relationships which would be threatened or severed altogether by the 

granting of permanent custody. Appellee counters that Mother was noncompliant 

with most of her case plan; she was unable to maintain sobriety or housing for any 

consistent length of time. She claimed to want a relationship with all of her 

children, but failed to visit them for long periods of time. 

{¶29} It is vital that B.M.S. has a stable, safe environment. The record 

before us indicates his current placement is going well. Mother has not remedied 

any of the circumstances that resulted in the original filing of the cases and cannot 

provide a stable home or environment. 

{¶30} We agree with appellee that Mother’s inability to maintain sobriety, 

work, housing, or a consistent relationship with her children outweighed B.M.S.’s 

separation from his mother. We conclude the findings of the juvenile court are 

supported by clear and convincing evidence. 
Ashland County, Case No. 20-COA-004 10 

CONCLUSION 

{¶31} Mother’s sole assignment of error is overruled and the judgment of the 

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

By: Delaney, J., 

Wise, John, P.J. and 

Baldwin, J., concur.