[Cite as In re B.K., 2023-Ohio-1820.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

IN RE B.K., ET AL. :

No. 112366

Minor Children :

[Appeal by J.K., Mother] :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: June 1, 2023

Civil Appeal from the Cuyahoga County Court of Common Pleas

Juvenile Division

Case Nos. AD21907898 and AD21907899

Appearances:

Dawn Snyder, Attorney at Law, LLC, and Dawn Snyder, 

for appellant Mother. 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Joseph C. Young, Assistant Prosecuting 

Attorney, for appellee CCDCFS.

MICHELLE J. SHEEHAN, P.J.:

Appellant mother appeals from a judgment of the juvenile court 

granting permanent custody of her children B.K., born in 2011, and J.K., born in 

September 2020, to the Cuyahoga County Department of Children and Family 
Services (hereafter “the agency”). Mother argues the trial court erred in denying her 

motion for legal custody to be granted to a relative. Our review indicates that the 

juvenile court properly engaged in the two-prong analysis set forth in R.C. 2151.414 

and that clear and convincing evidence supports the court’s decision granting 

permanent custody of the children to the agency. We therefore affirm the trial 

court’s decision. 

Substantive History and Procedural Background 

On September 2, 2021, the children’s father committed suicide by 

hanging himself in the hotel room where the family was staying after being evicted 

from the home of mother’s mother (hereafter “maternal grandmother”). Soon after, 

on September 8, 2021, the agency was granted emergency custody of the children. 

The agency placed B.K. with the children’s adult sibling and J.K. with mother’s sister 

(hereafter “maternal aunt”). 

Also on September 8, 2021, the agency filed a complaint for neglect and 

dependency and requested temporary custody of B.K. and J.K. to the children’s adult 

sibling and maternal aunt, respectively. 

On March 7, 2022, the trial court held an adjudication hearing. 

Ladonna Wheeler, a supervisor in the agency’s short-term service department,

testified that the agency became involved after father committed suicide while he 

was caring for the children. The family had been living in the hotel room since July 

2021, and both father and mother suffered mental health and substance-abuse 

problems. The agency was concerned with mother’s mental health because she had 
stated after father died that she wanted to kill herself and the children. Mother also 

reported that she suffered from severe anxiety and depression.

The children’s adult sibling, who was caring for B.K., testified that after 

mother and father were evicted from maternal grandmother’s home, they lived in a 

hotel room in the summer of 2021; B.K. stayed with her but also spent time with his 

parents in the hotel. On the day father committed suicide, she went to the hotel to 

help. Mother left the hotel to purchase cocaine twice. On that day, the extended 

family convened in maternal aunt’s house to discuss the placement of the children, 

but mother did not show up for the meeting. 

After the hearing, the children were adjudicated neglected and 

dependent and the court granted the agency’s motion for temporary custody of B.K. 

and J.K. to their adult sibling and maternal aunt, respectively. 

On March 17, 2022, the court held a dispositional hearing. Lauren 

Hopkins, the social worker for the agency, testified that mother was referred to 

services to address her mental health, substance abuse, and housing issues. Mother 

was required to address her mental health issues: the agency learned that mother 

and father had a “murder-suicide” pact and they planned to kill the children and 

then commit suicide. Mother was also referred for a substance abuse assessment 

because J.K. tested positive for opiates and oxycodone when he was born. Mother 

never participated in any services, however. In addition, mother had not seen the 

children since October 2021 — she failed to appear for the first scheduled visit and 

cancelled the second visit and the social worker was unable to contact her afterward. 
After the adjudication hearing, the court granted temporary custody of B.K. to the 

children’s adult sibling and J.K. to maternal aunt. 

On April 20, 2022, the agency filed a motion to modify temporary 

custody to permanent custody. On September 13, 2022, the trial court held a 

hearing to determine whether the agency made reasonable efforts to assist mother. 

The agency’s social worker testified that mother did not engage in the services for 

mental health, substance abuse, and parenting to which she was referred. 

On November 2, 2022, mother filed a motion for legal custody to the 

maternal grandmother, stating that the maternal grandmother was ready, willing, 

and able to provide for the children and meet their basic needs. 

On November 7, 2022, the trial court held an emergency custody 

hearing. The agency reported that it recently discovered the children’s adult sibling, 

who had temporary custody of B.K. and had planned for his adoption, dropped off 

one of her own children at maternal grandmother’s house, where mother was 

believed to be staying. The agency’s social worker reported that mother had two 

outstanding warrants for her arrest and the agency considered maternal 

grandmother to be an unsuitable caregiver due to mother’s presence in her house. 

Because of the incident, the agency now considered the children’s adult sibling 

unsuitable as well and moved for the emergency custody of B.K. 

At the hearing, the GAL confirmed that B.K. did not wish to return to 

mother’s care. The agency requested that B.K. be temporarily placed with the 
maternal aunt, who has been caring for J.K. The trial court granted the agency’s 

motion. 

Permanent Custody Hearing

On December 13, 2022, the trial court held a permanent custody 

hearing. Mother was incarcerated in Portage County Jail at the time and was 

transported for the hearing. Lauren Hopkins, the social worker, testified for the 

agency, and maternal grandmother testified on behalf of mother. 

a. Social Worker’s Testimony

The social worker testified that J.K. was doing well in maternal aunt’s 

care; when he was first placed with her he was not walking or crawling, and now he 

was able to walk and speak. Mother had not seen J.K. since October 2021 because 

mother failed to show up for scheduled visits. Mother did not participate in the 

services for mental health and substance abuse. In addition, she had three pending 

cases involving substance abuse: in a 2022 Portage County common pleas case, she 

pleaded guilty to a fifth-degree felony drug possession offense; in a 2022 Stow 

Municipal Court case, she was charged with drug paraphernalia; and in another 

2022 case in the same court she was charged with an offense of drug abuse. For the 

Portage County case, mother submitted a journal entry from the court that stated 

the court accepted a plea of guilty to a fifth-degree felony drug-possession offense 

and that she was to be assessed for intervention in lieu of conviction. 

The agency had considered a placement of the children with maternal 

grandmother but found her home to be inappropriate. The social worker went to 
her house in July 2022 to assess its condition, but maternal grandmother did not let 

her into the house. The social worker was able to view the condition of the house 

the day before the permanent-custody hearing, and she found the house in disarray. 

She testified that the house was “filled with a lot of junk.” She described the room 

B.K. would be staying in was “filled with stuff” and “you can’t even walk in there.”

There was no bed for B.K. to sleep on in the room; the bed meant for him was in the 

living room, but it was cluttered with household items. As for the room for J.K., 

maternal grandmother did not open the door for the social worker to observe its 

condition because it was full of mother’s possessions. Mother had been staying in 

the home but was serving a jail term for her drug offense at the time.

The social worker reported maternal aunt is interested in adopting 

J.K. She is not interested in adopting B.K., however, but willing to continue to care 

for B.K. until another placement becomes available. Maternal aunt would like B.K. 

to be returned to the care of the children’s adult sibling, but her suitability was being 

investigated by the agency after the incident where she sent her own son to be cared 

for by maternal grandmother when mother was present in the house. 

The social worker testified that she had observed B.K. and J.K. interact 

with each other and found them to be bonded. She stated that the agency expects 

them to visit each other even when they are not placed together, and she was certain 

that maternal aunt would not “give up” B.K. if he could not be returned to the 

children’s adult sibling, but she acknowledged that she could not “guarantee” that 

the children would see each other when the agency is no longer involved in their 
custody. She stated that if neither maternal aunt nor the adult sibling is interested 

in caring for B.K., the agency will consider placing him with the children’s paternal 

grandmother.

b. Maternal Grandmother’s Testimony

Maternal grandmother testified on mother’s behalf. She admitted that 

she did not have a relationship with the children since their removal. She was not 

invited to the children’s birthday parties, and when she gave gifts to J.K. for 

Christmas, maternal aunt discarded them.

Maternal grandmother acknowledged that her home was not ready for 

the children yet, but it will be soon because her son would help her repair various 

areas in the house requiring repairs, which included a window, a back door, the 

bathroom door, and the bathroom floor. Her son, however, may be moving to 

Florida for work. She testified that if she was granted legal custody of the children, 

she would move the clutter in the house to storage and provide a place for the 

children to sleep. She would also make sure they attend school and transport them 

to doctor appointments when necessary. She testified that she would choose her 

grandchildren over her daughter if she has to choose between them and she would 

not let her daughter return to her house when she is out of jail. 

The guardian ad litem (“GAL”) for the children recommended that the 

court grant the permanent custody of the children to the agency because it is in their 

best interest. After the hearing, the trial court granted the agency’s motion for 

permanent custody. Mother now appeals from the judgment. 
Appeal

On appeal, mother raises one assignment of error for our review, 

arguing that the trial court erred because an award of permanent custody to the 

agency is not in the children’s best interest and that the court should have granted 

mother’s motion for legal custody to maternal grandmother.

a. Standard of Review and the Two-Prong Permanent Custody 

Analysis 

We begin our analysis with the recognition that, while a parent’s right 

to raise a child is an essential and basic civil right, In re Hayes, 79 Ohio St.3d 46, 48, 

679 N.E.2d 680 (1997), children have the right to “parenting from either natural or 

adoptive parents which provides support, care, discipline, protection and

motivation.” In re Hitchcock, 120 Ohio App.3d 88, 102, 696 N.E.2d 1090 (8th 

Dist.1996).

Under Ohio’s permanent custody statute, R.C. 2151.414, the juvenile 

court’s judgment granting permanent custody must be supported by clear and 

convincing evidence. Clear and convincing evidence has been defined as “that 

measure or degree of proof which is more than a mere ‘preponderance of the 

evidence,’ but not to the extent of such certainty as is required beyond a reasonable 

doubt’ in criminal cases, and which will produce in the mind of the trier of facts a 

firm belief or conviction as to the facts sought to be established.” In re K.H., 119 Ohio 

St.3d 538, 2008-Ohio-4825, 895 N.E.2d 809, ¶ 42, quoting Cross v. Ledford, 161 

Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. We will not 
reverse a juvenile court’s termination of parental rights and award of permanent 

custody to an agency unless the judgment is not supported by clear and convincing 

evidence. See, e.g., In re N.B., 8th Dist. Cuyahoga No. 101390, 2015-Ohio-314, ¶ 48; 

and In re M.J., 8th Dist. Cuyahoga No. 100071, 2013-Ohio-5440, ¶ 24.

R.C. 2151.414 sets forth a two-prong analysis to be applied by a 

juvenile court in adjudicating a motion for permanent custody. R.C. 2151.414(B). 

Under the statute, the juvenile court is authorized to grant permanent custody of a 

child to the agency if, after a hearing, the court determines, by clear and convincing 

evidence, that any of the five factors under R.C. 2151.414(B)(1)(a) to (e) exists and, 

furthermore, permanent custody is in the best interest of the child under the factors 

enumerated in R.C. 2151.414(D)(1).

Under the first prong of the permanent-custody analysis, the juvenile 

court is to determine if any of the following factors exists: whether the child is 

abandoned (R.C. 2151.414(B)(1)(b)); whether the child is orphaned and there are no 

relatives of the child who are able to take permanent custody 

(R.C. 2151.414(B)(1)(c)); whether the child has been in the temporary custody of 

public children services agencies or private child placing agencies for 12 or more 

months of a consecutive 22-month period (R.C. 2151.414(B)(1)(d)); whether another 

child of the parent has been adjudicated as abused, neglected, or dependent on three 

separate occasions (R.C. 2151.414(B)(1)(e)); or, when none of these factors apply, 

whether “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.” (R.C. 

2151.414(B)(1)(a)).

If any of these five factors under R.C. 2151.414(B)(1) exists, the trial 

court proceeds to analyze the second prong — whether, by clear and convincing 

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

agency. R.C. 2151.414(D)(1).

b. First Prong: R.C. 2151.414(B)(1) Analysis

Here, under the first prong of the permanent-custody analysis, the 

trial court found the presence of the R.C. 2151.414(B)(1)(a) factor — that B.K. and 

J.K. cannot be placed with mother within a reasonable time or should not be placed 

with mother. 

For this finding, R.C. 2151.414(E) enumerates 15 factors for the court 

to consider. In this case, the trial court found the presence of (E)(1), (E)(4), and 

(E)(10) factors. Pertinent to this appeal, R.C. 2151.414(E) states, in part:

(E) 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, the court shall consider all relevant evidence. If the court 

determines, by clear and convincing evidence * * * 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 within a 

reasonable time or should not 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 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.

* * *

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

child by failing to regularly support, visit, or communicate with the 

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

to provide an adequate permanent home for the child[.]

* * *

(10) The parent has abandoned the child.

Pursuant to R.C. 2151.414(E), if the court determines, by clear and convincing 

evidence, that one or more of the (E)(1)-(15) factors exist, the court shall enter a 

finding that the child cannot be placed with either parent within a reasonable time 

or should not be placed with either parent. See e.g., In re I.R., 8th Dist. Cuyahoga 

No. 110410, 2021-Ohio-3103, ¶ 69; In re C.H., 8th Dist. Cuyahoga Nos. 82258 and 

82852, 2003-Ohio-6854, ¶ 58. 

Here, in support of the 2151.414(B)(1)(a) finding that the children 

cannot be placed with the parent within a reasonable time or should not be placed 

with the parent, the trial court found that mother failed to remedy the concerns that 

prompted the removal of B.K. and J.K. despite reasonable efforts made by the 

agency; she demonstrated a lack of commitment toward the children by failing to 

support, visit, or communicate with the children; and she abandoned the children. 
Our review reflects clear and convincing evidence relating to the (E)(1), (E)(4), and 

(E)(10) factors, and mother does not challenge these findings on appeal. 

c. Second Prong: Best Interest of the Child

Once the juvenile court determines that one of the five factors listed 

in R.C. 2151.414(B)(1) is present, the court proceeds to an analysis of the child’s best 

interest. The court undertakes this analysis with the recognition that although 

parents have a constitutionally protected interest in raising their children, that 

interest is not absolute and is always subject to the ultimate welfare of the child. In 

re B.L., 10th Dist. Franklin No. 04AP-1108, 2005-Ohio-1151, ¶ 7; and In re N.M., 8th 

Dist. Cuyahoga No. 106131, 2018-Ohio-1100.

On appeal, mother argues that it is in the best interest of the children 

to be placed in the legal custody of maternal grandmother. Pursuant to 

R.C. 2151.353(A)(3), if a child is adjudicated an abused, neglected, or dependent 

child, the court may award the legal custody of the child to a parent or one who has 

filed a motion requesting legal custody of the child. While an award of permanent 

custody vests all parental rights in a public children services agency and divests the 

child’s parents of all parental rights, including all residual rights, an award of legal 

custody does not divest parents of their residual parental rights. In re K.C., 

2017-Ohio-8383, 99 N.E.3d 1061, ¶ 7 (1st Dist.). 

“[T]he willingness of a relative to care for a child does not alter what 

the court must consider in determining permanent custody,” and the court “is not 

required to favor a relative if, after considering all the factors, it is in the child’s best 
interest for the agency to be granted permanent custody.” In re M.S., 8th Dist. 

Cuyahoga Nos. 101693 and 101694, 2015-Ohio-1028, ¶ 11. The issue to be resolved 

by the court at the permanent custody hearing was not whether B.K. and J.K. should 

be placed with maternal grandmother, but rather whether the agency’s motion for 

permanent custody should be granted. In re C.H., 8th Dist. Cuyahoga No. 103171, 

2016-Ohio-26, ¶ 26. “A juvenile court need not find, by clear and convincing 

evidence, that a relative is an unsuitable placement option prior to granting an 

agency’s motion for permanent custody.” (Emphasis sic.) Id., citing In re B.D., 4th 

Dist. Ross No. 08CA3016, 2008-Ohio-6273, ¶ 29. “[I]f permanent custody to the 

agency is in the children’s best interest, legal custody to [a relative] necessarily is 

not.” M.S. at ¶ 11, citing In re L.C., 9th Dist. Summit No. 26816, 2013-Ohio-2799, 

¶ 10. While it may be preferential in custody actions that children be placed with an 

appropriate relative, the preference applies only to case plans and not to custody 

determinations. C.H., 2016-Ohio-26, at ¶ 26, citing R.C. 2151.412(G) and In re 

M.W., 8th Dist. Cuyahoga No. 96817, 2011-Ohio-6444, ¶ 26.

Here, the trial court found permanent custody to be in the children’s 

best interest after its consideration of the factors enumerated in R.C. 2151.414(D). 

In determining the best interest of the child, R.C. 2151.414(D)(1) mandates that the 

juvenile court 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 * * *;

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

and whether that type of placement can be achieved without a grant of 

permanent custody to the agency;

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

section apply in relation to the parents and child.

When analyzing the best interest of the child, “[t]here is not one 

element that is given greater weight than the others pursuant to the statute.” In re 

Schaefer, 111 Ohio St.3d 498, 2006-Ohio-5513, 857 N.E.2d 532, ¶ 56.

The trial court here stated it found permanent custody to be in B.K.’s

and J.K.’s best interest after its consideration of (1) the children’s interaction and 

relationship with their parents, siblings, and relatives; (2) the children’s wishes; (3) 

the children’s custodial history; (4) the children’s need for a legally secure 

permanent placement; and (5) the report of the GAL, who recommended permanent 

custody to the agency.

Regarding the children’s interaction and interrelationship with 

others, the record reflects that mother had not visited with the children despite the 

agency’s efforts to facilitate visitations; mother had not seen the children since 

October 2021. Maternal grandmother had evicted the family from her home, and, 

as she acknowledged, she did not have a relationship with the children since their 
removal due to a poor relationship with maternal aunt. These factors weigh in favor 

of permanent custody. Mother, citing R.C. 2151.411, argues that the trial court failed 

to consider the priority of placing the two children together, which would weigh in 

favor of legal custody to maternal grandmother. That statute, however, applies to 

the placement of the children when they come into the custody of the agency.

1

Regarding the children’s wishes, the GAL confirmed that B.K. did not 

wish to return to mother. J.K., still an infant at the time of the trial, was too young 

to convey his wishes. Where a child is to too young to express his or her wish, it is 

proper for the juvenile court to consider the GAL’s recommendation as part of the 

R.C. 2151.414(D)(1)(b) analysis. In re R.A., 8th Dist. Cuyahoga No. 110541, 2021-

Ohio-4126, ¶ 52. The children’s GAL here recommended permanent custody to the 

agency. 

Regarding the children’s custodial history, the record reflects J.K. was 

in the temporary custody of maternal aunt since March 22, 2022, and B.K. was in 

the temporary custody of the adult sibling between March and November 2022 and 

in the custody of the agency in the month preceding the permanent-custody hearing. 

Regarding the question of the child’s need for a legally secure permanent placement 

1 R.C. 2151.411 states:

Whenever a child comes into the custody of a public children services 

agency, * * * the agency is strongly encouraged to make reasonable efforts 

to place the siblings together * * *. If siblings are not placed together, the 

agency should make reasonable efforts to ensure the siblings maintain 

frequent connections through visitation or other ongoing interaction * * *. 

(Emphasis added.)
and whether that type of placement can be achieved without a grant of permanent 

custody to the agency, mother does not challenge on appeal the trial court’s finding 

that the children cannot be placed with her within a reasonable time or should not 

be placed with her. Mother instead argues the children should be placed in the legal 

custody of maternal grandmother. By her own testimony, however, maternal 

grandmother admitted her home was not ready for the children at the time of the 

hearing and, although she had plans for the necessary cleanup and for the repairs to 

be done by her son, there was no assurance that the repairs would be made. 

Furthermore, even though she testified she would choose her grandchildren over 

her daughter and would not permit her daughter to return to her residence, the 

credibility of the testimony is a matter for the trial court. 

Our review therefore reflects the trial court’s decision granting 

permanent custody to the agency is supported by clear and convincing evidence 

contained in the record. In affirming the trial court’s judgment granting permanent 

custody, we are mindful that “[i]n proceedings involving the custody and welfare of 

children the power of the trial court to exercise discretion is peculiarly important. 

The knowledge obtained through contact with and observation of the parties and 

through independent investigation cannot be conveyed to a reviewing court by 

printed record.” In re V.M., 4th Dist. Athens No. 18CA15, 2018-Ohio-4974, ¶ 62, 

citing Trickey v. Trickey, 158 Ohio St. 9, 106 N.E.2d 772 (1952). “‘The discretion 

that 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 Ch. O., 8th Dist. Cuyahoga No. 84943, 

2005-Ohio-1013, ¶ 29, quoting In re Awkal, 95 Ohio App.3d 309, 316, 642 N.E.2d 

424 (8th Dist.).

For all the foregoing reasons, we find no merit to mother’s sole

assignment of error and affirm the trial court’s judgment granting permanent 

custody to the agency. 

Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

___________________________________

MICHELLE J. SHEEHAN, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and

SEAN C. GALLAGHER, J., CONCUR