[Cite as In re M.J., 2015-Ohio-127.]

 

IN THE COURT OF APPEALS OF OHIO 

 SECOND APPELLATE DISTRICT 

 GREENE COUNTY 

IN THE MATTERS OF: M.J. and J.J. 

Appellate Case Nos. 2014-CA-32 and 

 2014-CA-33 

Trial Court Case Nos. S44220 and S43007 

 

(Appeal from Domestic Relations Court) 

. . . . . . . . . . . 

O P I N I O N

Rendered on the 16th day of January, 2015. 

. . . . . . . . . . . 

BRITTANY M. HENSLEY, Atty. Reg. No. 0086269, Assistant Greene County Prosecuting Attorney, 

Counsel for Greene County Children Services, 55 Greene Street, First Floor, Xenia, Ohio 45385 

Attorney for Plaintiff-Appellee 

 

JENNIFER GETTY, Atty. Reg. No. 0074317, 46 East Franklin Street, Dayton, Ohio 45459 

Attorney for Appellee - A.H. 

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, 120 West Second Street, Suite 333, Dayton, 

Ohio 45402 

Attorney for Appellant - C.J. 

JOAN ACKERMAN, c/o Greene County Juvenile Court, 2100 Greene Way Boulevard, Xenia, Ohio 

45385 

Guardian Ad Litem 

. . . . . . . . . . . . . 

 
2

WELBAUM, J. 

{¶ 1} Appellant, C.J., the biological father of J.J. and M.J., appeals from a 

judgment terminating his parental rights to the children. The biological mother, A.H., has not 

appealed from the judgment terminating her parental rights. 

{¶ 2} In support of his appeal, C.J. contends that the judgment that he abandoned his 

children is against the manifest weight and sufficiency of the evidence. C.J. also contends that 

the judgment that the children could not be placed with him within a reasonable period of time is 

against the manifest weight of the evidence. Finally, C.J. contends that granting permanent 

custody to Greene County Children Services (GCCS) is not in the best interests of the minor 

children. 

{¶ 3} We conclude that the judgment of the trial court granting permanent custody of 

the children to GCCS is not against the manifest weight of the evidence, is supported by clear and 

convincing evidence, and is in the best interests of the children. Accordingly, the judgment of the 

trial court will be affirmed. 

 I. Facts and Course of Proceedings 

{¶ 4} In April 2011, GCCS filed a dependency complaint in juvenile court, alleging 

that J.J., who was born in February 2011, lacked adequate care because of the mental or physical 

condition of her parents, A.H. and C.J. The complaint alleged that GCCS had been involved 

with the parents previously, when their older child had been placed with the child’s maternal 

grandmother. 

{¶ 5} According to the complaint, J.J. had tested positive for marijuana when she was 
3

born, and A.H. admitted to having used marijuana throughout her pregnancy. After receiving a 

referral, GCCS attempted a safety plan, with A.H. and the baby living with the alleged paternal 

great-grandfather, and A.H. working with the agency. The plan was unsuccessful, and A.H. 

agreed to place J.J. in foster care. At the time, A.H. claimed that she did not know the 

whereabouts of the child’s father, C.J. In June 2011, the court found that the child was 

dependent, and awarded temporary custody to GCCS. 

{¶ 6} Because A.H. expressed little to no interest in working with GCCS or completing 

a case plan, A.H. was removed from the plan and the child was placed with her maternal 

grandfather in November 2011. By that time, A.H. had tested positive for marijuana on three 

random drug screens. In March 2012, the court awarded legal custody to the grandfather, B.H., 

noting that A.H. had not had contact with the child since the spring of 2011. 

{¶ 7} On August 5, 2012, A.H. gave birth to another child (M.J.), who had also been 

fathered by C.J. On August 7, 2012, GCCS requested an emergency order of custody of M.J., 

alleging that there were reasonable grounds to believe M.J. was in immediate danger from his 

surroundings. The court issued an order the same day, granting emergency custody of M.J. to 

GCCS. GCCS then filed a dependency complaint on August 8, 2012, based on the fact that A.H. 

was currently residing at the Family Violence Protection Center due to a history of abuse by C.J. 

Although A.H. denied having contact with C.J., he had been at the hospital on August 6 and 7, 

and A.H. planned to have C.J.’s mother transport her from the hospital to the shelter. According 

to the shelter, A.H. had demonstrated a history of non-compliance with the shelter’s requirements. 

 

{¶ 8} On August 21, 2012, the juvenile court granted interim custody of M.J. to GCCS. 
4

 A case plan was developed, which required A.H. to obtain stable housing apart from C.J., and to 

comply with other requirements, including submitting to random drug screens, continuing 

counseling, and so forth. M.J. was placed in foster care, and A.H. was permitted visits under 

supervision at the Family Violence Prevention Center due to concerns over C.J.’s prior domestic 

violence. The court then set an adjudicatory hearing for October 2, 2012. 

{¶ 9} On September 17, 2012, an amended case plan was filed, indicating that A.H. 

had obtained her own apartment, and visitation would be permitted at the apartment. 

Subsequently, on September 28, 2012, A.H. filed a motion for emergency custody of J.J. She 

noted in the motion that her father, B.H., who had custody of J.J., was homeless and had placed 

J.J. in her care a month earlier. A.H. also indicated that she was starting school in two weeks and 

needed to enroll J.J. in daycare. She included C.J.’s address, and indicated that he was subject to 

a protection order that the domestic relations court had issued in 2012. 

{¶ 10} On October 3, 2012, by agreement of GCCS and A.H., the court returned custody 

of M.J. to A.H., with protective supervision to GCCS. At the time, A.H. was enrolled in college, 

had completed the “Moms” program at the Women’s Center, had moved to her own two-bedroom 

apartment, and had received a mental health assessment. Subsequently, on October 15, 2012, the 

court gave A.H. interim custody of J.J., and again granted GCCS protective supervision. At the 

time, A.H. tested negative for any illegal drug use. The father, C.J., was in court at that time. 

{¶ 11} In November 2012, GCCS filed an amended case plan, including C.J., and 

adding services and requirements for him. According to the plan, C.J. had been in and out of jail 

for probation violations, had a history of drug abuse, and had no stable living environment or 

income. Both parents were required to comply with the civil protection order, submit to random 
5

drug screens, obtain counseling, and not engage in domestic violence. The amended case plan 

was approved, and the court returned legal custody of J.J. to the mother, with GCCS maintaining 

protective supervision. 

{¶ 12} Subsequently, on January 16, 2013, GCCS obtained an emergency order of 

custody for J.J. and M.J. GCCS then filed a complaint on January 17, 2013, alleging that the 

children were dependent pursuant to R.C. 2151.04(C). According to the complaint, A.H. had 

called the agency on January 16, 2013, to report that she had been offered a modeling job for a 

magazine in Las Vegas and would be leaving with the children the next day. Reportedly, the 

magazine was furnishing her with a four-bedroom house, a nanny, and a car. After receiving a 

release to speak to the employer, a “Mr. Fine” of Virtually Beautiful Magazine, GCCS was unable 

to confirm A.H.’s potential address and the details of her employment. Upon researching the 

magazine, GCCS found a website containing nude pictures and references to exotic aquatic pool 

parties. 

{¶ 13} The complaint further alleged that upon obtaining ex parte custody, a caseworker 

went to A.H.’s house to obtain the children. A.H. was not home, and the children were being 

cared for by an uncle and friend, who expressed concern about the children because the mother 

was never home. Contrary to what the caseworker had been told, the mother was working at a 

dance club, where she had met Mr. Fine. 

{¶ 14} There were also concerns about violation of the protection order. C.J. had been 

arrested on January 8, 2013, for violating the protection order, and was in the Greene County 

Adult Detention Center. C.J. told the caseworker that he had seen A.H. over a hundred times (in 

violation of the order). 
6

{¶ 15} On January 22, 2013, the juvenile court filed an entry granting interim custody to 

GCCS. A.H. was ordered to have a drug screen, and tested positive for marijuana and 

benzodiazepines. The children were placed in foster care, and an adjudicatory hearing was 

scheduled for March 15, 2013. An amended case plan was filed, giving A.H. restricted and 

supervised visits, and again requiring A.H. to comply with various requirements, including 

counseling, random drug screens, and so forth. At the time, C.J. was still in jail. 

{¶ 16} Neither parent appeared at the March adjudicatory hearing, despite having been 

notified. The children were adjudicated dependent, and GCCS was given temporary custody. 

An amended case plan was filed in March 2013, listing reunification as the goal. The plan did not 

list visitation for C.J., but GCCS indicated it would help facilitate visits for C.J. if the civil 

protection order or the court allowed visits. 

{¶ 17} A.H. visited the children sporadically, and did not visit them at all between May 

8, 2013 and January 27, 2014, despite repeated attempts by GCCS to involve her. A semi-annual 

review filed in August 2013 indicated that C.J. was again in jail and had felony charges for 

violating the protection order. He had also been diagnosed with bipolar disorder in April 2012 

and was not taking any medication. 

{¶ 18} On September 11, 2013, the GCCS caseworker in charge of the case, Krista V., 

accidentally encountered A.H. and C.J. together near the courthouse on the day that C.J. had been 

released from jail. Krista asked A.H. if she wanted to work on reunification, and after some 

hesitation and arguing, A.H. agreed to come into the agency. A.H. refused to give the caseworker 

an address, however. A.H. came into the agency and the case plan was updated. The following 

week, A.H. asked about visitation, and Krista told her it would take some time to process. When 
7

Krista attempted to reach A.H. the following week, the number A.H. had given her was 

disconnected, and GCCS was unable to contact A.H. The agency was also unable to reach C.J. 

Both parents tested positive for marijuana in September 2013. 

{¶ 19} On November 4, 2013, GCCS filed a motion requesting modification of 

temporary custody to permanent custody. The motion noted that A.H. had not seen the children 

since May 2013, and had not kept in contact with the agency to schedule visitation. The motion 

also noted that C.J. had not been able to visit the children due to a protection order that had been 

in effect from August 2012 to August 2013. However, after being released from jail in 

September 2013, C.J. had not engaged in case plan activities and had not kept in contact with 

GCCS in order to schedule visitation. 

{¶ 20} On November 13, 2013, GCCS filed an amended case plan, adding restricted and 

supervised visitation for C.J. The plan indicated that C.J. would need to meet certain 

requirements before visitation could begin, including meeting with a caseworker to establish a 

schedule, and starting case plan services. The same requirements pertained to A.H. 

{¶ 21} C.J. and A.H. did not contact GCCS until mid-December 2013, when they came 

together to the agency to ask about visitation. Visitation for A.H. and C.J. began on January 27, 

2014, when they saw the children. However, two days later, on January 29, 2014, C.J. was 

arrested for domestic violence and was incarcerated between then and April 28, 2014. A.H. saw 

the children five times between January 29, 2014, and March 3, 2014, and did not schedule 

visitation thereafter. A.H. also did not participate in her case plan. 

{¶ 22} On January 3, 2014, the court scheduled a permanent custody hearing for March 

11, 2014, and appointed a guardian ad litem for the children (GAL). The GAL’s preliminary 
8

report, filed on January 28, 2014, recommended that the court award permanent custody to GCCS. 

 The GAL then filed a report and recommendation on March 5, 2014, indicating that the parents 

had lived together for about a month before C.J.’s most recent arrest for domestic violence and 

driving under suspension. A.H. was reportedly pregnant with the father’s fourth child. In 

addition, C.J. had a history of mental health, drug, and legal issues dating to his early teenage 

years. The GAL noted that despite repeated attempts by GCCS, the parents had not been able to 

complete the goals established by the court and their case plan, and had not shown a consistent 

interest in visitation. Further, the children were thriving in foster care. The GAL, therefore, 

recommended that permanent custody be awarded to GCCS. 

{¶ 23} The custody hearing was continued until May 28, 2014. In the meantime, C.J. 

was released from jail on April 28, 2014. After being released from jail, C.J. had three visits with 

the children. He also had followed up on his medication at TCN, but had missed appointments 

on May 15, 19, and 21, 2014, with his case managers there. He was also attending a 

dual-diagnosis group, which met weekly. 

{¶ 24} A.H. did not appear at the hearing, although she was represented by counsel. 

GCCS presented evidence at the hearing from the various caseworkers who had worked on the 

case, and from the foster mother, who indicated that the children were doing very well in her care, 

and that she wished to adopt the children if GCCS were granted permanent custody. M.J. had 

been in her care since birth, other than the three months that A.H. had custody, and J.J. had been 

in her care since January 2013. 

{¶ 25} C.J. also testified at the hearing. He stated that he had obtained two jobs in the 

two weeks before the hearing, for which he was being paid under the table. None of his money 
9

had gone towards the support of the children. In fact, C.J. had never supported the children in 

any way since their birth. 

{¶ 26} C.J. also indicated that he was supposed to be living with his grandmother. 

However, he stated at the custody hearing that he had been “roughing” it lately, staying at a 

cousin’s, as well as his grandmother’s, and had slept in a park. In addition, C.J. had tested 

positive for marijuana the previous week, and admitted he would likely test positive again on the 

day of the custody hearing. Furthermore, C.J. also testified that he had seen A.H. the previous 

week at an event called “Cruise Fest,” and that they had intercourse. 

{¶ 27} After hearing the evidence, the trial court filed a judgment on June 12, 2014, 

granting permanent custody of J.J. and M.J. to GCCS. In its decision, the trial court concluded 

that both parents had abandoned the children, and that despite reasonable case planning and 

diligent efforts by the agency, C.J. had continuously and repeatedly failed to remedy the 

conditions causing the children to be placed outside the home. The court further concluded that 

the children could not be placed with either parent within a reasonable period of time, and that 

there were no suitable relative placements available. 

{¶ 28} C.J. now appeals from the judgment awarding permanent custody of the children 

to GCCS. As was noted, A.H. has not appealed from the court’s decision. 

 II. 

{¶ 29} C.J.’s First Assignment of Error states that: 

The Judgment of the Trial Court That Father Abandoned the Minor 

Children Was Against the Manifest Weight and Sufficiency of the Evidence. 
10

{¶ 30} Under this assignment of error, C.J. contends that GCCS did not present 

sufficient evidence that the children were abandoned. The trial court concluded that C.J. had 

abandoned the children by failing to visit them between January 2013 and January 2014. C.J. 

argues, however, that he rebutted the presumption of abandonment because GCCS refused to set 

up visitation. 

{¶ 31} As pertinent here, R.C. 2151.414(B)(1) states that: 

* * * [T]he court may grant permanent custody of a child to a movant if the court 

determines, * * * by clear and convincing evidence, that it is in the best interest of 

the child to grant permanent custody to the agency that filed the motion for 

permanent custody and that any of the following apply: 

(a) the child is not abandoned or orphaned or has not been in the custody of 

one or more public children services agencies * * * for twelve or more months of a 

consecutive twenty-two month period ending on or after March 18, 1999, 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. 

{¶ 32} With respect to abandonment, R.C. 2151.011(C) provides that: 

For the purposes of this chapter, a child shall be presumed abandoned when 

the parents of the child have failed to visit or maintain contact with the child for 

more than ninety days, regardless of whether the parents resume contact with the 

child after that period of ninety days. 

{¶ 33} The presumption of abandonment under R.C. 2151.011(C) is rebuttable. See In 
11

re Custody of C.E., 2d Dist. Champaign No. 2005-CA-11, 2005-Ohio-5913, ¶ 12, citing In re 

Cornell, 11th Dist. Portage No.2003-P-0054, 2003-Ohio-5007, fn. 2; and In re Phillips, 11th Dist. 

Ashtabula No. 2005-A-0020, 2005-Ohio-3774, ¶ 32. 

{¶ 34} With respect to challenges based on manifest weight and sufficiency of the 

evidence, the Tenth District Court of Appeals has noted that: 

In determining whether the trial court's ruling on the permanent custody 

motion is against the manifest weight of the evidence, we must consider whether 

the evidence on each element of the agency's case “satisfied or failed to satisfy the 

burden of persuasion,” i.e., whether clear and convincing evidence supports each 

element. See Sparre v. Ohio Dept. of Transp., 10th Dist. No. 12AP-381, 

2013-Ohio-4153, ¶ 11, citing Eastley v. Volkman, 132 Ohio St.3d 328, 

2012-Ohio-2179, ¶ 19. A judgment “ ‘supported by some competent, credible 

evidence going to all the essential elements of the case will not be reversed by a 

reviewing court as being against the manifest weight of the evidence.’ ” Id. at ¶ 

10, quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (1978), 

syllabus. “ ‘The phrase “some competent, credible evidence” * * * presupposes 

evidentiary weighing by an appellate court to determine whether the evidence is 

competent and credible.’ ” (Emphasis sic.) Id., quoting Eastley at ¶ 15. 

In re C.G., 10th Dist. Franklin Nos. 13AP-632, 13AP-653, 2014-Ohio-279, ¶ 30. 

{¶ 35} After making these comments, the Tenth District Court of Appeals further 

commented that: 

“ ‘Weight of the evidence concerns “the inclination of the greater amount 
12

of credible evidence, offered in a trial, to support one side of the issue rather than 

the other. * * * Weight is not a question of mathematics, but depends on [the 

evidence's] effect in inducing belief.” ’ ” (Emphasis deleted.) Eastley at ¶ 12, 

quoting State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Black's Law 

Dictionary 1594 (6th Ed.1990). “Thus, in reviewing a judgment under the 

manifest-weight standard, a court of appeals 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.” Sparre at ¶ 10, citing Eastley at ¶ 20. 

“In undertaking this limited reweighing of the evidence, however, we are 

guided by the presumption that the factual findings of the trial court were correct.” 

Sparre at ¶ 12. “Accordingly, the weight to be given the evidence and the 

credibility of the witnesses are primarily questions to be answered by the trier of 

fact.” Id., citing State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the 

syllabus. The rationale for this deference is the trier of fact is in the best position 

to view witnesses and observe their demeanor, voice inflections, and gestures. 

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Moreover, 

though sufficiency and manifest weight are different legal concepts, a finding that a 

judgment is supported by the manifest weight of the evidence necessarily includes 

a finding that sufficient evidence supports the judgment. See State v. Howze, 10th 

Dist. No. 13AP-386, 2013-Ohio-4800, ¶ 10. 

C.G. at ¶ 31-32. 
13

{¶ 36} After reviewing the evidence, we conclude that the trial court’s decision on 

abandonment was not against the manifest weight of the evidence, and was supported by clear and 

convincing evidence. 

{¶ 37} Although C.J. was in jail during parts of 2013, he was released from jail on 

September 11, 2013. The protection order had also expired by that time, and C.J. would have 

been entitled to see his children, regardless of the content of the order. However, C.J. did not 

seek visitation with his children until mid-December 2013, a period of more than ninety days. 

Unlike the mother in Custody of C.E., C.J. had no valid reason for failing to maintain contact with 

the children. Specifically, the mother in that case did not contact her children in order to avoid 

the substantial possibility that her location would be disclosed to her physically abusive husband. 

Custody of C.E., 2d Dist. Champaign No. 2005-CA-11, 2005-Ohio-5913, at ¶ 15. In Custody of 

C.E., we stressed that there was no evidence contradicting the mother’s testimony about her 

reason for failing to contact the children. Id. 

{¶ 38} Furthermore, even after C.J. established contact on January 27, 2014, he 

voluntarily committed acts, i.e., domestic violence, that caused his return to jail, and disrupted his 

contact with the children for another 90-day period. The other acts that caused C.J. to be 

incarcerated between at least April and September 2013 (during which time he also did not see the 

children), were also voluntary. 

{¶ 39} Moreover, the fact that C.J. visited with the children after he was released from 

jail in late April 2014 does not negate the presumption of abandonment. As was noted in the case 

of In re D.P., 10th Dist. Franklin No. 06AP-780, 2007-Ohio-1703, “R.C. 2151.011(C) clearly 

indicates that it is immaterial whether the parent resumes contact with the child after the period of 
14

abandonment.” Id. at ¶ 7, citing In re Cravens, 3d Dist. Defiance No. 4-03-48, 2004-Ohio-2356, 

¶ 23. 

{¶ 40} C.J. relies on In re N.C.P., 5th Dist. Stark No. 2014CA00083, 2014-Ohio-3694, 

in support of the proposition that if a parent attempts to visit but is prevented from doing so by the 

agency, “it would be difficult to prove that the parent’s actions were the equivalent of 

abandonment.” Brief of Appellant, C.J., p. 8. We agree that the Fifth District Court of Appeals 

did make such a statement in N.C.P. See, id. at ¶ 27, citing In re Adoptions of Groh, 153 Ohio 

App.3d 414, 424, 794 N.E.2d 695 (7th Dist.2003). Notably, however, the court of appeals did 

not find that the agency had interfered with visitation in N.C.P. Likewise, there is no evidence 

in the case before us that GCCS interfered with C.J.’s attempts to visit his children. 

{¶ 41} Instead, C.J.’s own actions caused a different court to issue a protection order 

against C.J. in August 2012. In November 2012, GCCS added C.J. to the case plan, and required 

him to do certain things, including abiding by the rules of his probation and the protection order, 

and not engaging in domestic violence incidents. Instead of doing so, C.J. admitted violating the 

protection order, and ended up in jail again shortly thereafter, from January to March 2013. 

{¶ 42} Furthermore, despite having been notified of the adjudicatory hearing on March 

15, 2013, and having been released from jail, C.J. failed to appear for the hearing. A few days 

after the hearing, GCCS filed an amended case plan, indicating that the agency would help 

facilitate visitation between C.J. and the children if the protection order or the court allowed 

visitation. Instead of taking steps to obtain visitation, C.J. again violated the civil protection 

order and was incarcerated from April to September 2013. Once visitation was established in 

January 2014, C.J. again committed domestic violence and was incarcerated for several more 
15

months. Thus, any lack of visitation was not the fault of GCCS. 

{¶ 43} Accordingly, the judgment that the children were abandoned is not against the 

manifest weight of the evidence, and is supported by clear and convincing evidence. The First 

Assignment of Error, therefore, is overruled. 

 

 III. Placement of Children Within a Reasonable Time 

{¶ 44} C.J.’s Second Assignment of Error states that: 

 

The Judgment of the Trial Court That the Children Could Not Be Placed 

With the Father Within a Reasonable Period of Time Was Against the Manifest 

Weight of the Evidence. 

{¶ 45} Under this assignment of error, C.J. contends that the trial court erred in 

concluding that the children could not be placed with him within a reasonable period of time. In 

this regard, C.J. notes that he was able to follow through with services when he was incarcerated, 

and that after his latest release from jail, he was cooperating with his treatment and had secured 

employment. C.J. further points to his testimony that the children could stay with his 

grandmother. 

{¶ 46} We have already concluded that the trial court did not err in finding that C.J. had 

abandoned the children. Since this finding would permit the court to conclude that a grant of 

permanent custody to GCCS was appropriate, we are not required to address the remaining ground 

for terminating parental rights. However, even if we were required to consider the matter, we 

would find the alleged error without merit. 
16

{¶ 47} As was noted, R.C. 2151.414(B)(1)(a) provides an alternate ground for awarding 

permanent custody to an agency, where “the child is not abandoned or orphaned or has not been in 

the custody of one or more public children services agencies * * * for twelve or more months of a 

consecutive twenty-two month period ending on or after March 18, 1999, 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.” 

{¶ 48} Under R.C. 2151.414(E), “[t]he court must consider all relevant evidence before 

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

be placed with the parents.” N.C.P., 5th Dist. Stark No. 2014CA00083, 2014-Ohio-3694, at ¶ 31. 

 “A trial court may base its decision that a child cannot be placed with a parent within a 

reasonable time or should not be placed with a parent upon the existence of any one of the R.C. 

2151.414(E) factors. The existence of one factor alone will support a finding that the child 

cannot be placed with the parent within a reasonable time.” Id., citing In re William S., 75 Ohio 

St.3d 95, 661 N.E.2d 738 (1996). (Other citations omitted.) See, also, In re Gau, 2d Dist. 

Montgomery No. 18630, 2001 WL 523963, *6 (May 18, 2001), and In re B.G.W., 10th Dist. 

Franklin No. 08AP-181, 2008-Ohio-3693, ¶ 11 (both citing William S.). 

{¶ 49} In concluding that the children could not be placed with C.J. within a reasonable 

time, the trial court noted that C.J. had failed to remedy the conditions that caused the children to 

be removed from the home, and that his stated intent to now comply with case plan activities was 

belied by his continued use of marijuana and his continued involvement with A.H. Thus, the 

court relied on R.C. 2151.414(E)(1), which states that : 

Following the placement of the child outside the child's home and 
17

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. 

{¶ 50} The trial court’s observations are well-supported in the record, by clear and 

convincing evidence, and the court’s conclusions are not against the manifest weight of the 

evidence. The evidence indicates that during the pendency of the case, the parents made little or 

no use of rehabilitative services and material resources that were made available, and there was 

very little likelihood, in view of C.J.’s comments at the hearing, that the conditions causing the 

children to be removed would be remedied within a reasonable time. Instead, C.J. continued to 

use marijuana and have contact with A.H. – courses of conduct that had proven disastrous in the 

past. Accordingly, the Second Assignment of Error is overruled. 

 IV. Best Interests of the Children 

{¶ 51} C.J.’s Third Assignment of Error states that: 

The Granting of Permanent Custody to GCCS Was Not in the Best Interest 

of the Children. 
18

{¶ 52} Under this assignment of error, C.J. contends that the factors in R.C. 

2151.414(D) indicate that granting permanent custody to GCCS was not in the best interest of the 

children. In this regard, C.J. argues that the children had a bond with him; that the children had 

not been in the agency’s custody for at least 12 months of a consecutive 22 months; and that he 

believed he could provide a legally secure permanent home for the children. 

{¶ 53} R.C. 2151.414(D)(1) provides that: 

In determining the best interest of a child * * * the court shall consider all 

relevant factors, including, but not limited to, the following: 

(a) The interaction and interrelationship of the child with the child's 

parents, siblings, relatives, foster caregivers and out-of-home providers, and any 

other person who may significantly affect the child; 

(b) The wishes of the child, as expressed directly by the child or through the 

child's guardian ad litem, with due regard for the maturity of the child; 

(c) The custodial history of the child, including whether the child has been 

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

private child placing agencies for twelve or more months of a consecutive 

twenty-two-month period, or the child has been in the temporary custody of one or 

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

or more months of a consecutive twenty-two-month period and, as described in 

division (D)(1) of section 2151.413 of the Revised Code, the child was previously 

in the temporary custody of an equivalent agency in another state; 

(d) The child's need for a legally secure permanent placement and whether 
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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. 

{¶ 54} We have previously held that “ ‘only one of the factors set forth in R.C. 

2151.414(D) needs to be resolved in favor of the award of permanent custody in order for the 

court to terminate parental rights.’ ” In re N.Q., 2d Dist. Montgomery No. 25428, 

2013-Ohio-3176, ¶ 71, citing In re Z.T., 8th Dist. Cuyahoga No. 88009, 2007-Ohio-827, ¶ 56. 

(Other citations omitted.) 

{¶ 55} All the factors, not just one, weigh in favor of granting permanent custody to 

GCCS. The children have bonded very well with their foster mother, with whom they have 

lived a great deal of their lives. They have also bonded with her family, including her parents, 

whom they see frequently. The children are much healthier than when they came into the foster 

mother’s care, and they are developmentally on target, as well as being loving and happy. 

Furthermore, although C.J. was described as being attentive and friendly to the children during 

visits, he had seen these very young children only four times in more than a year. There is no 

evidence that the children were bonded to him. 

{¶ 56} Regarding the second factor, the children were too young to express their wishes. 

 However, the GAL recommended that GCCS be given permanent custody. 

{¶ 57} With respect to the custodial history, the children had been in the custody of 

GCCS more than a year, which was a significant portion of their lives; in fact, M.J. had only been 

in his mother’s custody for about three months of his life, and neither child had even been in 
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C.J.’s custody. 

{¶ 58} Concerning the fourth factor, the children also needed a legally secure 

placement, and their foster mother wished to adopt both of them if GCCS received custody. 

There was no indication that permanent placement could be made without a grant of permanent 

custody to the agency. As was noted, the record reveals no evidence that C.J. could provide a 

stable, permanent home for the children. 

{¶ 59} With respect to the factors in R.C. 2151.414(E)(7)-(11), GCCS argues that both 

R.C. 2151.414(E)(9) and (10) apply. Factor (10) indicates that the parent has abandoned the 

child. As was previously noted, we agree with the trial court that both parents abandoned the 

children. 

{¶ 60} Finally, R.C. 2151.414(E)(9) applies where: 

The parent has placed the child at substantial risk of harm two or more 

times due to alcohol or drug abuse and has rejected treatment two or more times or 

refused to participate in further treatment two or more times after a case plan 

issued pursuant to section 2151.412 of the Revised Code requiring treatment of the 

parent was journalized as part of a dispositional order issued with respect to the 

child or an order was issued by any other court requiring treatment of the parent. 

{¶ 61} The record does not specifically indicate that C.J. placed the children at 

substantial risk of harm two or more times due to his drug abuse. According to C.J.’s counselor, 

C.J. has had a long battle with marijuana abuse and addiction. C.J. also failed to complete case 

plan goals for treating his mental health and addiction issues. However, C.J. was rarely around 

his children, and was in jail most of their lives. Inferentially, C.J.’s actions placed the children at 
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risk due to his failure to obtain treatment and act as a parent should, but there is no evidence that 

C.J. actually placed the children at substantial risk of harm on two or more specific occasions. 

The absence of specifics on this factor, however, is irrelevant in view of the otherwise 

overwhelming evidence that a grant of permanent custody to GCCS is in the children’s best 

interest. 

{¶ 62} Accordingly, the Third Assignment of Error is overruled. 

 V. Conclusion 

{¶ 63} All of C.J.’s assignments of error having been overruled, the judgment of the 

trial court is affirmed. 

. . . . . . . . . . . . . 

FAIN, J. and HALL, J., concur. 

Copies mailed to: 

Brittany M. Hensley 

Jennifer Getty 

Marcy A. Vonderwell 

Joan Ackerman 

Hon. Robert W. Hutcheson